Summary:

I.

The complainant, a German national, was convicted in both Switzerland and Germany of driving under the influence of alcohol while in Switzerland.

As a consequence of her driving under the influence of alcohol, a Swiss road traffic authority revoked her foreign licence to drive in Switzerland and Liechtenstein for a period of two months, and she was sentenced in a non-appealable decision by a Swiss district authority to pay a fine for driving under the influence of alcohol.

The competent Local Court in Germany sentenced the complainant to pay a fine for negligent driving under the influence of alcohol and banned her from driving for a period of two months. The German Local Court considered the fine imposed and collected in Switzerland a mitigating factor in its sentencing. Furthermore, it also set off the fine collected in Switzerland against the fine it imposed.

The complainant’s appeal against the judgment of the Local Court was rejected as unfounded by the Higher Regional Court. The complainant’s constitutional complaint was directed against the judgment of the Local Court and the order of the Higher Regional Court.

II.

The First Chamber of the Second Senate did not admit the constitutional complaint for decision. It held that the judgment of the Local Court did not violate the complainant’s fundamental rights or her rights equivalent to fundamental rights.

The decision was based on the following considerations:

There is no violation of Article 103.3 of the Basic Law. This legal provision grants individuals a constitutional right not to be punished twice for the same offence. However, the ne bis in idem principle, which is anchored in Article 103.3 of the Basic Law, only applies in the case of first convictions by German, not foreign, courts. This is in line with the Federal Constitutional Court’s established case-law which is based on the premise that the drafting history of Article 103.3 of the Basic Law must be attributed paramount importance in the provision’s interpretation and application. According to the drafting history of the Article, it was only meant to make reference to the procedural law applicable at the time the Basic Law entered into force, and the ne bis in idem principle was only meant to be given constitutional status to the extent that it was recognised in non-constitutional law. At that time, the ne bis in idem principle was recognised to be applicable only for domestic, not for cross-national cases.

Moreover, the judgment of the Local Court does not violate Article 2.1 in conjunction with Article 25 of the Basic Law.

At present, there is no general rule of public international law within the meaning of Article 25 sentence 1 of the Basic Law according to which no person may be prosecuted or punished again for the same offence in respect of which he or she has already been convicted or acquitted in a non-appealable decision under the criminal jurisdiction of a foreign state. A rule of public international law will be considered general within the meaning of Article 25 of the Basic Law if it is recognised by an overwhelming majority of states. General rules of public international law are rules of universally valid customary international law that are complemented by general legal principles derived from national legal systems.

A ne bis in idem principle applicable with regard to convictions in foreign jurisdiction has not become established either as international customary law or as a general legal principle. To this day no cross-border prohibition against being tried or punished twice for the same offence has been embodied in a global international treaty or key universal or regional human rights instruments under public international law.

Nor can the attempts ascertainable at the European level to incorporate a cross-border effect of the ne bis in idem principle in international treaties be regarded as an expression of the legal conviction of the states involved regarding the validity of such principle.

Nor does the judgment violate Article 2.1 of the Basic Law in conjunction with the proportionality principle derived from the rule of law principle.

Sentencing and prosecution also have to be examined to see whether they are proportionate, and they must be suitable, necessary and proportionate in a stricter sense for achieving the purposes of the punishment. If the present criminal proceedings and the sentence imposed are measured by the above standards, they are not constitutionally objectionable.

Criminal proceedings in respect of an offence committed abroad will only be suitable and necessary from the point of view of protecting legal interests if the legal interest protected by a federal German criminal law is affected by conduct abroad. In interpreting the respective law, the regular courts need to clarify whether the subject matter protected by criminal law is affected by the conduct abroad. The Federal Constitutional Court will review their interpretation only if there is a violation of a specific constitutional law. The fact that the Local Court regarded driving under the influence of alcohol abroad as falling within the scope of § 316 of the Criminal Code is not constitutionally objectionable.

Nor does the fact that the offence had already been punished in Switzerland render the recent criminal proceedings and the punishment imposed disproportionate.

Dispensing with domestic criminal proceedings because a foreign state has already prosecuted the offence or already punished the offender is not constitutionally required. The proportionality principle only obliges the legislature to ensure that the consequences for an offender of his or her criminal act (including also the effect of foreign criminal proceedings and any conviction abroad) are, all in all, still commensurate with the seriousness of his or her violation of a legal interest and his or her individual guilt. The legislature has fulfilled this obligation by prescribing in § 51.3 sentence 1 of the Criminal Code that it is mandatory for the courts to recognise in their sentencing a penalty that has been enforced abroad.