THIRD SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 40301/04
by Ioan POP
against Romania
The European Court of Human Rights (Third Section), sitting on 28 June 2011 as a Committee composed of:
Egbert Myjer, President,
Luis López Guerra,
Mihai Poalelungi, judges,
and Marialena Tsirli, Deputy Section Registrar,
Having regard to the comments submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Ioan Pop, is a Romanian national who was born in 1935 and lives in Satu Mare. He was represented before the Court by Mr Călin-Gheorghe Dragomir, a lawyer practising in Satu Mare. The Romanian Government (“the Government”) were represented by their Agent, Mr Răzvan-Horaţiu Radu, from the Ministry of Foreign Affairs.
A. The circumstances of the case
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. On 22 April 2004 the applicant was fined 2,000,000 Romanian lei (ROL) (approximately EUR 50) by the police because he had not stopped and given way to official vehicles when signalled to do so as required by Article 89 (f) of the Government Emergency Ordinance no. 195/2002 concerning traffic on public roads. The police also suspended his driving licence for ninety days.
4. The police report was drafted immediately after the alleged offence had been committed by the applicant in the presence of A.M.G., a civilian who had been brought to witness the drafting of the report. There is no evidence in the file that A.M.G. witnessed the offence allegedly committed by the applicant.
5. The applicant refused to sign the report and argued that he had stopped and given way to the official vehicles. There is no evidence in the file that the applicant raised any other objections or that he argued that the official signals to stop and the official cars were not sufficiently visible.
6. On an unspecified date in 2004 the applicant brought proceedings against the Satu Mare Police Department seeking the annulment of the police report certifying the contravention. At the same time he challenged the photographs produced as evidence by the police and allegedly showing the applicant’s vehicle committing the contravention. He argued that the number plate of the car in the photos was not clearly visible and that the said car was not his since his car, unlike the car in the photos, was fitted with a roof rack. However, it appears that he did not submit evidence in support of his claim and did not ask the court to hear A.M.G. or any other witnesses.
7. By a judgment of 24 June 2004 the Satu Mare District Court allowed the applicant’s action and annulled the police report. The court held that, according to the photos produced by the police as evidence, the car in the photos was alone on the road and no official vehicles could be seen in any of the photos. Moreover, the applicant had challenged the police report and raised an objection in respect of its content.
8. The Satu Mare Police Department appealed against the judgment. They argued that the applicant had not asked the District Court for leave to produce evidence in order to rebut the presumption of truth of the facts held against him in the police report. They submitted that the applicant had, moreover, been photographed by the police officers driving the official cars and that the details of the applicant’s car had been immediately communicated to other police officers stationed on the same road who were stopping traffic offenders in order to fine them. They acknowledged that the car registration plates in the photograph were not clearly visible, but argued that it was clear that the car on the road was moving and that it had been overtaken by police cars. Lastly, they considered that, under Article 1169 of the Romanian Civil Code, it was for the applicant to prove his statement that his car, unlike the car in the photo, was fitted with a roof rack.
9. The applicant reiterated the claims he had made before the first‑instance court, but did not submit any evidence in support of those claims and did not ask the court to hear any witnesses.
10. By a final judgment of 10 September 2004 the Satu Mare County Court allowed the Satu Mare Police Department’s appeal. The court held that the applicant had failed to prove his allegations that his car was fitted with a roof rack. Moreover, the photos showed the official vehicles and the car on the road continuing to move forward. Lastly, the District Court had not provided reasons for its judgment and the evidence relied on by the said court had been contradictory and unrelated to the case at hand.
11. On 6 November 2009 the Government informed the Court that they were unable to submit a full copy of the record of the proceedings which had ended with the final judgment of 10 September 2004 as requested by the Court. They submitted that the statutory period of two years for the file to be stored in the archives from the date of the final domestic judgment had expired and consequently the file had been removed from the archives of the domestic courts on 12 June 2008. Therefore, the only available documents they could submit were copies of the domestic judgments.
12. In his submission to the Court, the applicant agreed that the Government could not be held responsible for the removal of the file from the domestic court’s archives.
B. Relevant domestic law and practice
1. Government Emergency Ordinance no. 195/2002 concerning traffic on public roads, published in the Official Journal no. 958 of 20 December 2002
13. The relevant part of the Emergency Ordinance at the material time reads as follows:
Article 89
“The following acts are contraventions and are punishable by fines ranging from 2,000,000 lei [EUR 50] to 8,000,000 lei [EUR 200]:
...
(f) the failure to obey police signals when official vehicles are passing;
...”
2. Government Emergency Ordinance no. 2/2001 concerning contraventions, published in the Official Journal no. 410 of 20 July 2001 and approved by Law no. 180/2002
14. The relevant parts of the Emergency Ordinance at the material time read as follows:
Article 5
“...
2. Contraventions are punishable by:
(a) a warning;
(b) a fine;
(c) an obligation on the offender to perform community service;
...”
Article 17
“The report shall be declared null and void if it does not contain the first name, family name, position and signature of the State agent drafting the report, the first name and family name of the offender, and the date and type of the offence. The report can be declared null and void of the court’s own motion.”
15. The relevant legal provisions concerning the recent amendments to the legal rules applicable in respect of legislation concerning contraventions and the relevant domestic practice on contraventions are set forth in the judgment of Anghel v. Romania (no. 28183/03, §§ 35-39, 4 October 2007).
COMPLAINT
16. Relying on Article 6 of the Convention the applicant alleged that the proceedings brought by him against the Satu Mare Police Department seeking the annulment of the police report certifying a contravention he had committed had been unfair and that the domestic courts had requested him to prove his innocence.
THE LAW
17. The applicant complained of the unfairness of the proceedings concerning the annulment of the police report of 22 April 2004, in particular the fact that the domestic courts had shifted the burden of proof and required him to prove that he was innocent. He relied on Article 6 of the Convention, which, in so far as relevant, reads as follows:
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law ...
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
...”
18. The Government raised the preliminary objection that Article 6 of the Convention was not applicable to the proceedings in the instant case. They argued that the present case had not concerned a “criminal charge” within the meaning of that provision of the Convention. In their submission, the legislation on contraventions could not be viewed in terms of the rules applied in respect of criminal-law proceedings. Instead, it belonged to a new branch of law created in order to deal with certain situations not meriting protection by the criminal law. Consequently, contraventions were distinguishable from criminal offences not only by the procedure laid down for their prosecution and punishment but also by their judicial characteristics and consequences. Moreover, unlike in the case of Anghel v. Romania, (no. 28183/03, 4 October 2007), the fine contested by the applicant could not be equated with a criminal fine, especially as, according to the provisions of the domestic law, it could not any longer in any circumstances be replaced by a custodial sentence. Lastly, since the amount of the fine was the minimum prescribed by the law on contraventions it was not sufficiently severe to conclude that it could be characterized as criminal.
19. In respect of the merits of the case the Government argued that their failure to submit a full copy of the record of the proceedings as requested by the Court, although regrettable, was justified by the lawful removal of the file from the domestic court’s archives. Consequently, they considered they could not be held responsible for failing to provide additional information in respect of the proceedings. At the same time, they argued that there was no available evidence in respect of the proceedings brought by the applicant against the police report of 22 April 2004 to suggest that the domestic courts had started examining the case with the preconceived idea that the accused had committed the offence he was charged with or that the police report in question could not be rebutted. Furthermore, the domestic courts had the power to examine and annul the police report of their own motion if it did not contain the information required by Article 17 of Government Emergency Ordinance no. 2/2001 concerning contraventions. The applicant had benefitted from adversarial proceedings and the domestic courts had relied not only on the contested police report but also on other evidence such as the police photos, which supported the factual situation described by the report. Moreover, the applicant had failed to ask the domestic courts for leave to submit additional evidence – such as, for example, witnesses – to prove his allegation as required by the general principles of procedural law applicable in respect of legislation concerning contraventions.
20. The applicant disagreed and submitted that Article 6 was applicable under its criminal head.
21. In respect of the merits of the case the applicant submitted that the dismissal by the domestic courts of the proceedings brought by him contesting the police report of 22 April 2004 had breached his rights guaranteed by Article 6 of the Convention, in particular the presumption of innocence. He argued that the domestic courts had placed him in a disadvantaged position vis-à-vis the position of the domestic authorities. They had shifted the burden of proof and required the applicant to prove that the car in the photos was not his, although the evidence produced by the police was unclear and should have benefited him. Lastly, he agreed that the respondent Government could not be held responsible for the removal of the file from the domestic court’s archives.
22. The Court reiterates that in ascertaining whether there was a “criminal charge”, regard must be had to three criteria: the legal classification of the measure in question in national law, the very nature of the measure, and the nature and degree of severity of the “penalty” (see Escoubet v. Belgium [GC], no. 26780/95, § 32, ECHR 1999-VII). Furthermore, these criteria are alternative and not cumulative ones: for Article 6 to apply in respect of the words “criminal charge”, it suffices that the offence in question should by its nature be “criminal” from the point of view of the Convention, or should have made the person concerned liable to a sanction which, by virtue of its nature and degree of severity, belongs in general to the “criminal” sphere. This does not prevent a cumulative approach from being adopted where the separate analysis of each criterion does not make it possible to reach a clear conclusion as to the existence of a “criminal charge” (see Garyfallou AEBE v. Greece, 24 September 1997, § 33, Reports of Judgments and Decisions 1997‑V; Jussila v. Finland [GC], no. 73053/01, §§ 30 and 31, ECHR 2006-XIII; and Zaicevs v. Latvia, no. 65022/01, § 31, ECHR 2007-IX).
23. With regard to the first of these criteria, the Court notes that the domestic law has chosen to “decriminalise” certain acts such as the traffic offence of which the applicant was accused and which are regulated by the Government Emergency Ordinance no. 195/2002 concerning traffic on public roads. Consequently, it shares the Government’s view that the said offence falls within the ambit of legislation on contraventions and that it has been removed from the criminal-law sphere.
24. However, the indications furnished by domestic law have only a relative value. The second criterion stated above – the very nature of the offence, considered also in relation to the nature of the corresponding penalty – represents a factor of appreciation of greater weight (see Öztürk v. Germany, 21 February 1984, § 52, Series A no 73; Jussila, cited above, § 38; and Huseyin Turan v. Turkey, no. 11529/02, § 18, 4 March 2008).
25. In this regard the Court observes that the fine and the suspension of his driving licence were imposed on the applicant under general legal provisions applying to all citizens in their capacity as public road users. It prescribes conduct of a certain kind, in particular to stop and give way to official vehicles, and makes the resultant requirement subject to a sanction that is punitive. Moreover, the fine is not intended as pecuniary compensation for damage but as a punishment to deter reoffending. Consequently, the general character of the rule and the purpose of the penalties, being both deterrent and punitive, suffice to show that the offence in question was, in terms of Article 6 of the Convention, criminal in nature.
26. With regard to the nature and severity of the “penalties”, the Court notes that nothing in the file could suggest that the suspension of the applicant’s driving licence had serious consequences for him. Moreover, it notes that the fine could not be replaced with a custodial sentence in the event of non-payment (see, conversely, Anghel, cited above, § 52) and was the minimum amount prescribed by the law concerning contraventions. However, it reiterates that the relative lack of seriousness of the penalties at stake cannot divest an offence of its inherently criminal character (see Öztürk, cited above, p. 21, § 54, and Huseyin Turan, cited above, § 20).
27. In the light of the aforementioned considerations, the Court considers that the measures imposed on the applicant qualify as a “criminal charge” within the meaning of Article 6 of the Convention. Consequently, the said Article is applicable under its criminal head.
28. However, the Court notes that the applicant’s complaint is inadmissible for the reasons presented below.
29. The Court notes from the outset that both parties have agreed that the Government could not be held responsible for the removal of the file from the domestic court’s archives. It follows that the failure of the Government to submit additional information in respect of the domestic proceedings as requested by the Court could not be imputable to them.
30. The Court reiterates that it has already established that it was not surprising that the domestic courts had expected the applicant to rebut the presumption of lawfulness and validity of the police report in respect of contraventions having regard to the general principles of procedural law applicable in respect of legislation concerning contraventions (see Anghel, cited above, §§ 58 and 59).
31. At the same time, it reiterates that presumptions of fact or of law operate in every legal system. Clearly, the Convention does not prohibit such presumptions in principle. It does, however, require the Contracting States to remain within certain limits in this respect, as regards criminal law, which take into account the importance of what is at stake and maintain the rights of the defence (see, for instance, Salabiaku v. France, 7 October 1988, § 28, Series A no. 141-A, and Anghel, cited above, § 60). The Court will consider whether such limits were exceeded to the detriment of the applicant in the present case.
32. In respect of what is at stake for the applicant, the Court notes that the fine imposed on him was EUR 50 and could not be replaced with a custodial sentence under any circumstances in the event of non-payment (see paragraph 15 above and, conversely, Anghel, cited above, § 52). Moreover, there is no evidence in the file that the suspension of the applicant’s driving licence had any serious consequences for him.
33. Furthermore, in respect of the applicant’s rights of defence, the Court notes on the basis of the available evidence that the domestic courts heard submissions from the applicant and allowed him to submit evidence in support of his allegations, in particular his statement that his car was different from the one shown in the police photos. The fact that the applicant failed to ask the court to examine evidence (see, conversely, Anghel, cited above, §§ 10 and 12) and that consequently the Satu Mare County Court, on the basis of a reasoned judgment, decided to rely on the evidence submitted by the police, quashed the judgment of the first-instance court and dismissed his statements does not appear unfair or arbitrary.
34. In this connection the Court reiterates that the admissibility of evidence is primarily a matter for regulation by national law and as a general rule it is for the national courts to assess the evidence before them. The Court’s task under the Convention is not to give a ruling as to whether statements of witnesses were properly admitted as evidence, but rather to ascertain whether the proceedings as a whole, including the way in which evidence was taken, were fair (see Doorson v. the Netherlands, judgment of 26 March 1996, § 67, Reports 1996-II, and Van Mechelen and Others v. the Netherlands, judgment of 23 April 1997, § 50, Reports 1997-III).
35. The Court notes in this regard, based on the information and the arguments submitted by the parties, that the applicant was present at the court hearings. His oral and written statements were attached to the file and he had the opportunity to submit evidence and to ask the courts to hear witnesses. While it appears that the trial judges deemed it unnecessary to hear witnesses for the prosecution or defence, the Court notes that the applicant did not ask the domestic courts to hear any witnesses either. Nor did he ask for leave to submit any other evidence in support of his statement that the car in the police photos was different from his in so far as it did not have a roof rack. In this respect the Court notes that although the witness A.M.G. did not appear to have directly witnessed the incident he might have been able to provide information on whether the applicant’s car was fitted with a roof rack on the day the applicant committed the offence and the police report was drafted. Consequently, having regard to the limited available evidence, the Court considers that the proceedings the applicant was a party to do not appear to have placed him in a disadvantaged position vis-à-vis that of the authorities simply because the domestic legal regime applicable in respect of contraventions was different from the one applied in respect of criminal law (see, conversely, Anghel, cited above, § 67). Moreover, the domestic authorities in the present case had exercised their power of assessment by reasoned decisions on the basis of the evidence adduced by the parties before them and, in doing so, had remained within the limits set out by Article 6.
36. In the light of the foregoing, the Court considers that the applicant’s complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Marialena TsirliEgbert Myjer
Deputy RegistrarPresident
Full & Egal Universal Law Academy