Austrian VwGH: Double Jeopardy for Being both Vehicle Driver and Holder?

Apr 4, 2025 Benn-Ibler Rechtsanwälte

Is it permissible to impose two penalties on the same person at the same time, one for a violation of Section 102 of the Austrian 1967 Motor Vehicles Act (Kraftfahrgesetz 1967, hereinafter KFG) as the driver and one for a violation of Section 103 of the KFG as the holder of the registration, or does this violate the prohibition of double jeopardy?

In the case as hand, the appellant had been fined by the local authority (Bezirkshauptmannschaft) for driving a motorcycle in contravention of Section 102(1) of the KFG, because he had failed to keep the vehicle in compliance with the KFG before driving it. As the registered holder of the motorcycle’s registration, he was also fined for making changes to the motorcycle without notifying the authorities. As the motorcycle did not comply with the provisions of the KFG, he was therefore punished by the provincial police for violating Section 103(1)(1) in connection with Section 33(1) of the KFG.

The Regional Administrative Court dismissed the appeal against this penalty. The appellant then appealed to the Austrian Administrative Court (Verwaltungsgerichtshof, hereinafter VwGH), which ruled as follows:

According to the case law of the VfGH (Verfassungsgerichtshof, Austrian Constitutional Court), double or multiple punishment is constitutionally inadmissible only if a criminal offence or prosecution for a criminal offence has already been the subject of criminal proceedings and the type of offence referred to exhausts the degree of wrongdoing and culpability of the offender’ conduct.

The VwGH now clarified that Sections 102 and 103 of the KFG are two different offences which are not in apparent competition with each other and that the degree of wrongfulness of one offence is not covered by the degree of wrongfulness of the other. The obligations of the registered owner, as described in more detail in Section 33(1) of the KFG, exist irrespective of whether and who drives the vehicle.

In conclusion, the VwGH was therefore correct in assuming that the appellant had committed two separate offences.

VwGH Ra 2024/02/0236 (22 January 2025)