AS TO THE ADMISSIBILITY OF
Application No. 12995/87
by Staffan DUHS
against Sweden
The European Commission of Human Rights sitting in private
on 7 December 1990, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
Mrs. G. H. THUNE
Sir Basil HALL
MM. F. MARTINEZ RUIZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
A.V. ALMEIDA RIBEIRO
M.P. PELLONPÄÄ
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 17 April 1987
by Staffan DUHS against Sweden and registered on 15 June 1987 under
file No. 12995/87;
Having regard to the report provided for in Rule 47 of the
Rules of Procedure of the Commission;
Having regard to the written observations submitted by the
Government on 19 October 1989, 18 January and 14 June 1990 and the
applicant's observations of 25 November 1989, 27 August and
7 October 1990;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as submitted by the parties, may be
summarised as follows.
The applicant is a Swedish citizen born in Stockholm in 1940.
He is a diplomat by profession.
Prior to moving abroad in autumn 1985, the applicant sold his
car to a foreigner, who was then resident in Sweden. Having delivered
the car to a representative of the buyer, the applicant cancelled his
traffic insurance on the car, thereby making it illegal to drive the
vehicle until a new insurance agreement had been entered into. This
was in accordance with the terms of the purchase agreement, which
provided that the buyer was to credit the applicant's bank account
with the amount fixed for the sale of the car and then insure the car
in his own name. As soon as the money had been credited on his
account, the applicant was to inform the car register office
(bilregistret) of the transfer of ownership of the car.
The buyer failed to deposit the purchase money in the
applicant's bank account for a period of two months, during which time
(from 7 November to 12 December 1985) he committed five parking
offences in central Stockholm. After some time the applicant, who had
been registered owner of the car until 14 January 1986 and thus when
the offences were committed, was requested to pay the fees, which
amounted to the sum of 1,450 SEK.
Section 4 of the 1976 Act on Parking Fees (lagen om felparkerings-
avgift) provides that the individual who is the registered owner of the
vehicle in the car register is responsible for the payment of any
parking fees unless it is established that the circumstances were such
as to make it probable that the owner had been deprived of his vehicle
at the material time as the result of a criminal offence. Section 9
of the 1976 Act provides that the owner may inform the competent
police authority in writing of any objection to the obligation to pay
the fee. If the police authority finds that the responsibility for
payment of a parking fee does not rest with the person who has
objected, the obligation to pay the fee is quashed. Appeals against
the decision of the police authority may be lodged under Section 10 of
the 1976 Act with the District Court (tingsrätten) and subsequently
with the Court of Appeal (hovrätten).
Notwithstanding such an objection, however, Section 7 of the
1976 Act provides that the fee should be paid within the stipulated
time limit, after which the Enforcement Office (kronofogdemyndigheten)
may issue an order under Section 6 requiring the owner to pay any
outstanding fee. The amount concerned may then be levied by those
authorities in the event of continuing failure to pay, even if the
responsibility for the offence has not been determined by a court. It
appears from the travaux préparatoires concerning Section 6 of the
1976 Act that the ground for this unconditional obligation to pay fees
before any court determination is to avoid unnecessary delay in
payment, having regard to the possibility of refunding the amount of
the fee if it later appears that it should not have been levied.
The minimum fee under the 1976 Act is 75 SEK, the maximum 500
SEK. Parking offences are not registered in the criminal record and
imprisonment cannot be imposed in case of non-payment.
By letter of 17 February 1986 the applicant informed the
Police Authority of Stockholm that he objected to the payment of the
parking fees on the grounds that the purchaser of the car in using
the car without paying for it had committed a criminal offence of
unlawful use under the Penal Code (brottsbalken). Having received no
answer, the applicant wrote a further letter to the Police Authority
on 4 June 1987.
On 11 October 1988 the Police Authority of Solna rejected the
applicant's objection on the ground that the applicant had been
registered as the owner of the car until 14 January 1986 and as such
was responsible for the payment of the fee in accordance with Section
4 of the Act on Parking Fees. Moreover, the applicant had not been
deprived of his car by a criminal offence.
The applicant appealed to the District Court of Stockholm which
delivered judgment on 23 October 1989. It found that the applicant had
voluntarily delivered the car to a representative of the buyer. On
this ground the Court found that it was not likely that the applicant
had been deprived of his car by a criminal offence and it therefore
rejected the appeal.
The applicant appealed to the Svea Court of Appeal. On 12
February 1990 the Svea Court of Appeal upheld the decision of the
District Court of Stockholm, stating in addition that according to the
car register the applicant had been registered as owner of the car
until 14 January 1986 and the parking fees had been imposed between 7
November and 12 December 1985. The Court concluded that the applicant
must be considered as the owner of the car when the parking fees were
imposed. No appeal lies against the decision of the Court of Appeal.
In the meantime, in November 1986, the Enforcement Office of
Stockholm decided to levy the outstanding fees from the applicant's
salary. The applicant appealed against this decision to the Svea
Court of Appeal, arguing that he had not been found guilty of an
offence by a court and that the procedure was therefore contrary to
the fundamental principle of presumption of innocence. The applicant
also requested that enforcement of the fee be stayed pending the
outcome of his appeal.
The fee was nevertheless levied on 25 November 1986, and the
Court of Appeal rejected the applicant's appeal on 4 December 1986.
A subsequent application to the Supreme Court (högsta domstolen) for
leave to appeal was rejected on 23 March 1987.
COMPLAINTS
The applicant complains that Section 6 of the 1976 Act on
Parking Fees allows for fees to be levied from an individual without a
court hearing even if he claims that he was not responsible for the
offence in question. Thus the burden of proof is shifted from the
prosecution to the defendant. The applicant had to prove his
innocence. Moreover, the procedure followed is inadequate as the delay
in the procedure and the police authority's failure to investigate has
resulted in the buyer's offences being subject to prescription. The
applicant alleges a violation of Article 6 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 17 April 1987 and registered
on 15 June 1987.
On 12 July 1989 the Commission decided to communicate the
application to the respondent Government.
The Government's observations were received by letter dated
19 October 1989 and the applicant's observations were dated
25 November 1989. The Government made further submissions dated
18 January and 14 June 1990 and those of the applicant were dated
27 August and 7 October 1990.
THE LAW
The applicant alleges a violation of Article 6 (Art. 6) of
the Convention on the ground that he was obliged to pay parking fees
although no court had previously established that he was responsible
for the parking offences.
Article 6 para. 1 (Art. 6-1) of the Convention, insofar as
relevant, reads as follows in its first sentence:
"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."
Originally, the Government contended that the applicant had
not exhausted domestic remedies until his appeal had been examined by
the Swedish courts. As the applicant has now exhausted the remedies
referred to by the Government, the Commission is not required to
examine this submission further.
The Government submit that the proceedings at issue did
not concern the determination of a criminal charge against the
applicant. Consequently, Article 6 (Art. 6) is not applicable.
If Article 6 (Art. 6) were applicable, the applicant's case was
examined by a court in a procedure satisfying Article 6 (Art. 6)
and, accordingly, the complaint is manifestly ill-founded.
The Commission recalls that the notion of a "criminal charge"
in Article 6 (Art. 6) is an autonomous concept. In determining whether
the parking offence is "criminal" the Commission will, in accordance with
the case-law (Eur. Court H.R., Öztürk judgment of 21 February 1984,
Series A no. 73, p. 18, para. 50), apply three criteria:
- whether the offence belongs to the criminal law according to
the legal system of the respondent state
- the nature of the offence;
- the nature and degree of severity of the penalty which may
be imposed.
As regards the first criterion, the Commission notes that when
the 1976 Act on Parking Fees, replacing a previous act on parking
offences, entered into force, the intention of the legislator was
inter alia to "decriminalise" these offences. It follows that parking
offences no longer fall within the ambit of Swedish criminal law.
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 greater weight. The
Commission notes that the possible sanction under the 1976 Act ranges
from 75 to 500 SEK. It also notes that a parking offence is not
registered in the criminal record and that imprisonment cannot be
imposed as an alternative.
It follows from the above-mentioned Öztürk judgment p. 20,
para. 53) that it is of great significance whether the purpose of the
sanction is to be punitive and deterrent. The Government admit that
this is the purpose under Swedish law concerning parking fees. In
these circumstances, it is difficult to distinguish the nature of the
parking offence at issue here from the nature of the regulatory
offence at issue in the Öztürk case.
The Commission accepts the Government's submission that the
applicant's parking offence is less severe than the offence committed
by Mr. Öztürk. The Commission further notes the Government's argument
that, contrary to the Öztürk case, in the present case the
"decriminalisation" which followed from the 1976 Act was not simply a
change in the procedure to be followed but it also involved important
changes as to the very substance of the parking offence. In
particular, the question of guilt in the traditional sense of the word
is of very limited significance under the new Act. In fact, a kind of
strict liability for parking offences has been placed on the owner of
the car.
The Commission considers that these two elements are the
distinguishing elements from the Öztürk case. The Commission, however,
doubts whether they are sufficient for bringing the present case
outside the scope of Article 6 (Art. 6). The Commission considers
that it can leave this question open as the application is
nevertheless inadmissible for the following reasons.
Assuming that Article 6 (Art. 6) applies the Commission notes
that the applicant made use of the possibility he had under Swedish
law to have his case decided by the courts. There is nothing to
indicate that these procedures did not fulfil the requirements of
Article 6 (Art. 6) of the Convention. The only issue which arises is
whether the fact that the fee was payable and enforceable before a
court had determined the applicant's "guilt" is compatible with
Article 6 (Art. 6) of the Convention.
The Commission is of the opinion that a serious issue would
arise if ordinary sentences, notably prison sentences, could be
imposed and executed before a court had determined the guilt and the
sentence. However, the Commission considers that this does not apply
to the present case which concerns such minor offences as parking
offences, where there exist legal safeguards, including subsequent
court examinations, and where the fee is refunded in case of a
successful objection to the fee.
The Commission also considers that the fact that the applicant
was considered responsible for the parking fee under the 1976 Act on
the ground that he was the registered owner of the car is not as such
in breach of Article 6 (Art. 6) of the Convention (cf. Eur. Court H.R.,
Salabiaku judgment of 7 October 1988, Series A no 141-A).
The Commission also finds that the facts of the case do not
disclose any appearance of a violation of the presumption of innocence
guaranteed by Article 6 para. 2 (Art. 6-2) of the Convention.
It follows that the application is manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission by a majority
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy