Last Updated on October 26, 2021 by LawEuro
Information Note on the Court’s case-law 255
October 2021
Kindlhofer v. Austria – 20962/15
Judgment 26.10.2021 [Section IV]
Article 2 of Protocol No. 7
Right of appeal in criminal matters
Offence punishable by a fine, or imprisonment in default of its payment, regarded as “minor” in view of procedural safeguards governing enforcement of the latter sanction: no violation
Facts – A fine of EUR 200 or four days’ imprisonment in default of payment was imposed on the applicant by the police for failure to inform the latter of an accident in which only material damage had been caused. Under the relevant provision of the Road Traffic Act, this offence was punishable by “a fine of up to 726 euros [and], in the event that the amount of the fine cannot be recovered … imprisonment of up to two weeks”.
The Regional Administrative Court upheld this sanction. This decision was not amenable to appeal before the Supreme Administrative Court, as the fine the applicant risked incurring had not exceeded EUR 750, no primary prison sentence could be imposed, and the fine actually imposed had not exceeded EUR 400.
Law – Article 2 of Protocol No. 7:
The Court examined whether the offence the applicant had been convicted of might be regarded as one of a “minor character” so as to fall under one of the exceptions to the right of a review by a higher tribunal. For the Court, if the law prescribed a custodial sentence as the main punishment, an offence could not be described as “minor” within the meaning of the second paragraph of Article 2 of Protocol No. 7. And the Court had also found that an offence concerning a petty theft and not punishable by imprisonment was of a minor nature, falling within the exceptions permitted. However, the absence of a prison term, though an important factor for the assessment of the minor character of an offence, was not decisive in itself. The Court had to take into account the specific circumstances of the case before it (see Saquetti Iglesias v. Spain).
The offence of which the applicant had been convicted did not carry a custodial sentence as the main punishment. The Court therefore had to determine whether an offence for which the law prescribes a term of up to two weeks’ imprisonment in default of payment could be considered “minor” for the purposes of Article 2 § 2 of Protocol No. 7, a question which it had not yet dealt with.
In order to examine whether imprisonment in default of payment had an impact on whether an offence might be regarded as one of a minor character, the Court had to take into account the particular circumstances of the case, in particular whether it was likely that the imprisonment in default would actually be enforced. Therefore, it had to have regard to the legal framework for the enforcement of imprisonment in default. Once a conviction for an administrative fine became final, it was not within the discretion of the authorities to order imprisonment in lieu of payment of the fine. On the contrary, the authority first had to attempt to enforce payment of the fine or make comprehensive enquiries into the financial situation of the convicted person. Furthermore, that person had to be informed of the imminent enforcement of the prison sentence and be given the opportunity to avoid it by paying the amount of the fine due and to also request to pay the fine in instalments.
Consequently, imprisonment in default of payment constituted an exceptional measure under domestic law, the enforcement of which was subject to a number of procedural safeguards. In particular, the convicted person had to be clearly made aware of that risk and given the appropriate means to avoid it. In such circumstances, it had to be considered a measure substantially different from imprisonment as the primary sanction and therefore did not prevent the offence the applicant had been convicted of being regarded as minor. Neither the amount of the fine imposed nor the maximum fine the applicant had risked incurring appeared in themselves sufficient to consider that the offence was not minor. Indeed, within the gradation of the penal sanctions provided for in the law, the maximum sentence in issue was clearly one of the least serious ones. Within the domestic administrative criminal system, the underlying offence was not considered to be of serious nature. The applicant had also not claimed that he had not been able to pay the fine or that the amount of the fine imposed had not sufficiently taken into consideration his financial situation.
Conclusion: no violation (six votes to one).
(See also Galstyan v. Armenia, 26986/03, 15 November 2007, Legal summary; Saquetti Iglesias v. Spain, 50514/13, 30 June 2020, Legal summary)
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