AS TO THE ADMISSIBILITY OF
Application No. 28288/95
by Flemming PETERSEN
against Denmark
The European Commission of Human Rights (Second Chamber) sitting
in private on 16 April 1998, the following members being present:
MM J.-C. GEUS, President
M.A. NOWICKI
G. JÖRUNDSSON
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
Mrs G.H. THUNE
MM F. MARTINEZ
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
A. ARABADJIEV
Ms M.-T. SCHOEPFER, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 15 May 1995 by
Flemming PETERSEN against Denmark and registered on 23 August 1995
under file No. 28288/95;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Danish citizen, born in 1945. He is a lawyer
and resides in Dragør.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
A. Particular circumstances of the case
On 24 January 1992 the applicant was ordered by the Chief of
Police of Tårnby to pay a parking fee (parkeringsafgift), in the amount
of 400 DKK as, allegedly, he had parked a trailer belonging to him in
violation of section 1 of the Parking Ordinance for Tårnby Police
District (Bekendtgørelse om parkering i Tårnby Politikreds). The amount
of 400 DKK was fixed in accordance with section 121 of the Road Traffic
Act (færdselsloven).
As the applicant did not pay the parking fee the case was sent
to the Bailiff's Court (fogedretten) which is competent to hear claims
for execution and to institute enforcement proceedings.
On 28 August 1992 the applicant was summoned to the Bailiff's
Court. By letter of 21 October 1992 to the Bailiff's Court the
applicant maintained that no parking offence had been committed. The
case was heard on 26 October 1992 and 28 January 1993 during which the
applicant had the opportunity to explain and submit what in his opinion
was of relevance to the outcome of the case. "The plaintiff" during the
proceedings in the Bailiff's Court was the Central Register for Parking
Fees (Centralregisteret for Parkeringsafgifter) which is an
administrative body under the National Chief of Police (Rigspoliti-
chefen).
On 11 March 1993 the Bailiff's Court decided to provide the
General Register with the necessary assistance to recover the fee and
the costs involved. In its decision the Court stated, inter alia, as
follows:
(Translation)
"The Parking Ordinance for Tårnby Police District of
7 June 1992 reads as follows:
'...
Section 1.
Parking of vehicles of a maximum gross weight
exceeding 3,500 kg (lorries, buses and the
like), trailers (including caravans), engine
implements and tractors is not allowed in the
time between 7.00 pm and 7.00 am, unless such
parking is permitted by special signposting at
certain road sections or sites.
However, trailers (including caravans) of a
maximum gross weight not exceeding 2,000 kg may
be parked at the places mentioned for up to 24
hours.
...'
[The applicant] explained that he is a professional diver.
For the purpose of his profession he owns a trailer (tool
trailer) provided with diver's equipment, to allow him to
turn out at short notice around the clock when he is called
for. The trailer weighs approximately 1100 kg. [The
applicant] admits that the trailer was parked on ... for
more than 24 hours i.e. from 22 January 1992 at
approximately 10 a.m. to 23 January 1992 at 11 a.m.
The plaintiff has argued, in support of its claim, that a
trailer, within the meaning of section 1 subsection 2 of
the Parking Ordinance, is defined as follows in section 2
subsection 17 of the Road Traffic Act.
'17. Trailer:
a vehicle which is made for the purpose of being
drawn by another vehicle. Trailers are divided
into semitrailers, lorry trailers and mobile
implements.'
From a literal interpretation of section 1 subsection 2 of
the Ordinance and section [2] subsection 17 of the Road
Traffic Act the prohibition against parking a trailer for
more than 24 hours includes any trailer which is made for
the purpose of being drawn by another vehicle regardless of
whether or not the trailer was connected to the drawing
vehicle.
[The applicant] has argued in support of his claim that it
is not disputed that the trailer was connected to the
drawing vehicle in the observation period in issue. The
prohibition against parking a trailer for more than
24 hours only includes trailers which are parked alone
without being connected to the drawing vehicle. Thus, the
imposition of the parking fee on him is unfounded.
The Bailiff's Court's reasons:
With reference to the arguments put forward by the
plaintiff
It is decided:
The plaintiff's, the Central Register for Parking Fees,
request for execution against [the applicant], in respect
of a parking fee including costs in the amount of 700 DKK,
is admitted."
From the transcripts it appears that no objections were made to
the competence or composition of the court. Nor did the applicant raise
any questions as to the impartiality of the court.
On 19 March 1993 the applicant appealed against the decision to
the High Court for Eastern Denmark (Østre Landsret). He maintained that
the Bailiff's Court's decision was based on an incorrect interpretation
of the law. In the applicant's written statements to the High Court he
added new arguments as to the interpretation of the law. However, he
did not base the appeal on misgivings as to the competence and
composition of the Bailiff's Court. Nor did he raise any questions as
to the impartiality of the Bailiff's Court or the High Court.
On 19 April 1993 the High Court upheld the Bailiff's Court's
decision on the basis of an evaluation of the written material
submitted. The decision reads as follows:
(Translation)
"Referring to the Bailiff's Court's reasoning and as the
arguments presented to the High Court make no difference as
to the result, the High Court agrees that the request for
execution is admitted."
On 29 April 1993 the applicant applied to the Ministry of Justice
for leave to appeal to the Supreme Court (Højesteret). He alleged that
the High Court's decision was based on a wrong interpretation of
section 1 subsection 2 of the Parking Ordinance for Tårnby Police
District and that the case implied matters of principle. However, he
did not submit any allegations as to the competence or composition of
the Bailiff's Court. Nor did he raise any questions as to the
impartiality of the lower courts. On 21 October 1993 the Ministry of
Justice refused leave to appeal.
On 8 March 1994 the applicant applied to the Supreme Court for
permission to have his case examined by the Supreme Court pursuant to
section 399 of the Administration of Justice Act (retsplejeloven) which
in its subsections 1-3 reads as follows:
(Translation)
"Section 399.
Subsection 1. On an exceptional basis the Supreme Court may
allow the reopening of a case already decided upon by the
Court when:
1. it must be considered likely that the case contained
wrong information for which the applicant could not be
blamed and that, subsequent to its reopening, the case will
end with a considerably different result;
2. it must be considered obvious that, only through this
remedy, would the applicant be able to avoid or redress a
considerable loss; and
3. in other respects the circumstances speak, to a
considerable extent, in favour of a reopening.
Subsection 2. Under the conditions mentioned in
subsection 1 the Supreme Court may grant leave to appeal
against a judgment pronounced by a High Court or a City
Court notwithstanding that the statutory time-limit
(section 372 subsection 1, fourth sentence) of one year has
expired.
Subsection 3. The Supreme Court decides how an application
for leave pursuant to subsection 1 or 2 must be processed
and whether to depart from the general rules during the new
examination of the case.
... ."
In his application the applicant maintained that the decisions
taken by the lower courts were based on an incorrect interpretation of
the law. Furthermore, he complained that the High Court had not taken
into consideration the arguments he had presented to it. In addition,
he argued, the case concerned matters of principle. No allegations
concerning the competence or composition of the Bailiff's Court were
made. Nor did he raise any questions as to the impartiality of the
lower courts. By decision of 25 April 1994 the Supreme Court decided
to grant the applicant permission to have his case tried before the
Supreme Court referring to section 399 subsection 2 of the
Administration of Justice Act. The applicant was requested to lodge his
appeal within four weeks.
On 11 May 1994 the applicant appealed to the Supreme Court,
adding new arguments as to the interpretation of the law. The plaintiff
submitted its arguments on 10 June 1994 and the applicant submitted his
final statements in reply on 30 June 1994. In neither of his statements
to the Supreme Court did the applicant raise any questions as to the
competence or composition of the Bailiff's Court or the impartiality
of the lower courts or the Supreme Court. The Supreme Court upheld the
High Court's decision on 16 November 1994. The Court's decision reads
as follows:
(Translation)
"With reference to the reasoning of the High Court and as
the arguments presented to the Supreme Court make no
difference as to the result, the Supreme Court agrees that
the disputed parking is covered by section 1 of the Parking
Ordinance for Tårnby Police District of 7 June 1982. [The
applicant's] claim must therefore be rejected ...".
B. Relevant domestic law and practice
Enforcement proceedings belong to the activities of the city
courts, cf. section 14 subsection 1 of the Administration of Justice
Act. The city courts are classified as ordinary courts of law, cf.
section 1 subsection 1 of the Act. The Bailiff's Court is competent to
examine the debtor's objections, whether they concern issues of fact
or of law and evidence may also be produced before the Bailiff's Court
concerning both the existence of the claim and its amount. However, the
Bailiff's Court may refuse the production of evidence which should be
given during ordinary legal proceedings owing to its volume or nature
or for other reasons, cf. section 501 subsection 4 of the Act. The
legal effect of such decision is that the execution or enforcement will
be refused, and the plaintiff will then have to have the existence and
amount of the claim established in ordinary court proceedings.
The proceedings in the Bailiff's Court are usually oral, thus,
the debtor has a right to be present, cf. sections 494 and 495 of the
Administration of Justice Act. By way of contrast, on appeal to the
High Court or the Supreme Court the proceedings are in writing, cf.
section 587 subsection 1 referring inter alia to section 398. However,
if the nature of the case so requires the appeal courts may decide to
hold oral hearings, cf. section 587 subsection 6. Such a decision is
usually dependent on a request from one or both of the parties.
The Bailiff's Court is presided over by a judge or, as in the
present case, by a deputy judge (dommerfuldmægtig). The deputy judges
are afforded independence by section 64 of the Constitution in so far
as they must obey only the law. However, the constitutional safeguards
concerning irremovability of judges do not apply to deputy judges.
COMPLAINTS
The applicant complains, under Article 6 of the Convention, that
in the proceedings concerning the parking fee he was not afforded a
fair trial by an impartial tribunal.
THE LAW
The applicant claims that in the proceedings concerning the
parking fee he did not have a fair trial before an impartial tribunal.
He invokes in this respect Article 6 (Art. 6) of the Convention which,
in so far as relevant, reads as follows:
"In the determination of his civil rights and obligations
or of any criminal charge against him, everyone is entitled
to a fair and public hearing ... by an independent and
impartial tribunal ... ."
The Commission recalls that the proceedings concerned the
enforcement of the obligation to pay a parking fee. The question may
therefore arise whether Article 6 (Art. 6) applies. The Commission
finds, however, that it can leave this question open and proceed on the
assumption that Article 6 (Art. 6) applies.
In support of his allegations under this provision the applicant
submits that the Bailiff's Court cannot be considered an "ordinary
court" and the deputy judge not a "real judge". Furthermore, he submits
that since he had no possibility of being present in the High Court or
in the Supreme Court and, referring also to Articles 51 and 60 of the
Convention, since the latter courts did not provide any independent
grounds for their decisions, he did not have a fair trial by an
impartial tribunal.
Before entering into these aspects of the application the
Commission recalls that Article 26 (Art. 26) of the Convention provides
that the Commission may deal with the matter only after all domestic
remedies have been exhausted, according to the generally recognised
rules of international law, and within a period of six months from the
date on which the final decision was taken.
As far as the exhaustion of domestic remedies is concerned the
Commission recalls that the mere fact that an applicant has submitted
his or her case to the various competent courts does not of itself
constitute compliance with this rule. It is also required that the
substance of any complaint made before the Commission should have been
raised during the proceedings concerned. In this respect the Commission
refers to its established case-law (see e.g. Dec. 6.3.84, D.R. 37,
p. 113).
In the present case the applicant did not raise, either in form
or in substance, in the proceedings before the domestic courts the
complaints which he now makes before the Commission related to the
proceedings in the Bailiff's Court or this court as such, nor did he
raise at any moment the issue of the impartiality in respect of any of
the domestic courts. Moreover, an examination of the case as it has
been submitted does not disclose the existence of any special
circumstances which might have absolved the applicant, according to the
generally recognised rules of international law, from raising these
complaints in the proceedings referred to.
It follows that the applicant has not complied with the condition
as to the exhaustion of domestic remedies and this part of the
application must be rejected under Article 27 para. 3 (Art. 27-3) of
the Convention.
As regards the other complaints made by the applicant the
Commission recalls that in the present case, the judgment of the High
Court was given on 19 April 1993 and the applicant's request for leave
to appeal to the Supreme Court was rejected by the Ministry of Justice
on 21 October 1993. The applicant then submitted a petition to the
Supreme Court for leave to present his case to the Supreme Court
pursuant to section 399 of the Administration of Justice Act. On
25 April 1994 the Supreme Court decided to grant the applicant such
permission but by decision of 16 November 1994 the Supreme Court upheld
the High Court's decision of 19 April 1993.
The Commission recalls that an application for retrial or similar
extraordinary remedies, such as a petition submitted under section 399
of the Administration of Justice Act, cannot, as a general rule, be
taken into consideration in the application of Article 26 (Art. 26) of
the Convention (cf. e.g. No. 10326/83, Dec. 6.10.83, D.R. 35, p. 218
with further references and No. 12858/87, Dec. 3.5.88, unpublished).
Nor does Article 6 (Art. 6) normally apply to proceedings where
questions of granting a retrial or re-opening a case are determined
(cf. e.g. Nos. 13601/88 and 13602/88, Dec. 6.7.89, D.R. 62, p. 284).
In the present case, however, the Commission finds it desirable to
leave these issues open as the remainder of the application is in any
event inadmissible for the following reasons.
a) The applicant alleges that he did not have an opportunity to be
present when the High Court and the Supreme Court determined his
appeal.
The Commission recalls that Article 6 para. 1 (Art. 6-1)
guarantees the right to a public hearing, unless the conditions for
exceptions in the second sentence of that paragraph are satisfied. The
public character of court hearings constitutes a fundamental principle
enshrined in paragraph 1 of Article 6 (Art. 6-1). However, neither the
letter nor the spirit of this provision prevents a person from waiving
of his or her own free will, either expressly or tacitly, the
entitlement to have the case heard in public. A waiver must be in an
unequivocal manner and must not run counter to any important interests
(see e.g. Eur. Court HR, Håkansson and Sturesson v. Sweden judgment of
21 February 1990, Series A no. 171-A, p. 20, para. 66).
No express waiver was made in the present case. The question is
whether there was a tacit one. Section 587 subsection 6 of
the Administration of Justice Act makes express provision for an oral
hearing if the nature of the case so requires. However, the Commission
observes that the applicant did not request an oral hearing at any
stage during the appeal proceedings. He may be considered thereby
unequivocally to have waived his right to a public hearing before the
appellate courts.
In addition, the Commission recalls that, provided that there has
been a public hearing at first instance, the absence of "public
hearings" before a court of second or third instance may be justified
by the special features of the proceedings at issue. Thus,
leave-to-appeal proceedings and proceedings involving only questions
of law, as opposed to questions of fact, may comply with the
requirements of Article 6 (Art. 6), although the appellant was not
given an opportunity of being heard in person by the appeal or
cassation court (see e.g. Eur. Court HR, Jan-Åke Andersson v. Sweden
judgment of 29 October 1991, Series A no. 212-B, p. 45, para. 27).
In the present case the Commission considers that the applicant's
appeals to the appeal courts raised only questions of law, i.e. the
interpretation of the relevant provision of the Parking Ordinance,
which could be resolved adequately on the basis of the case-file. It
does not appear that the case involved any questions of public interest
which could have made a public hearing necessary. Considering also the
amount with which the domestic proceedings were concerned, the appeal
courts could, as a matter of fair trial, properly decide to examine the
appeals without the applicant having a right to be present (see e.g.
the Jan-Åke Andersson v. Sweden judgment op. cit., p. 46, para. 29).
In these circumstances the Commission finds that the applicant's
absence in the appellate courts does not disclose any appearance of a
violation of the Convention.
b) Finally, the applicant complains that the High Court and the
Supreme Court did not give any independent reasons for their decisions.
The Commission recalls that although the national courts enjoy
considerable discretion as to the content and structure of their
judgments, they must indicate with sufficient clarity the grounds on
which they based their decision (cf. Eur. Court HR, Hadjianastassiou
v. Greece judgment of 16 December 1992, Series A no. 252, p. 16,
para. 33). However, they need not give a detailed answer to every
argument (cf. Eur. Court HR, Van de Hurk v. the Netherlands judgment
of 19 April 1994, Series A no. 288, p. 20, para. 61).
The extent to which this duty to give reasons applies may vary
according to the nature of the decision. Moreover, it is necessary to
take into account, inter alia, the diversity of the submissions that
a litigant may bring before the courts and the differences existing in
the Contracting States with regard to statutory provisions, customary
rules, legal opinion and the presentation and drafting of judgments.
That is why the question whether a court has failed to fulfil the
obligation to state reasons, deriving from Article 6 (Art. 6) of the
Convention, can be determined only in the light of the circumstances
of each case (cf. Eur. Court HR, Ruiz Torija v. Spain judgment of 9
December 1994, Series A no. 303-B, p. 30, para. 27).
In the present case the Commission recalls that it follows from
the facts as submitted by the applicant that the High Court as well as
the Supreme Court addressed the submissions by the applicant. In part
the reasoning in the High Court's and the Supreme Court's decisions was
made by referring to the decision of the previous court. By doing so
the appeal courts must be considered as having accepted respectively
the Bailiff's Court's and the High Court's reasoning (cf. No. 24949/94,
Dec. 3.12.96, D.R. 87-A, p. 68). It does not make any difference in
this respect that the Bailiff's Court's reasoning referred to the
plaintiff's submissions as it was sufficiently clear on which points
of law and fact the Bailiff's Court based its decision. In these
circumstances there is no indication that the proceedings were unfair
or in any way contrary to Article 6 para. 1 (Art. 6-1) of the
Convention or other Articles of the Convention.
It follows that this part of 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, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.-T. SCHOEPFER J.-C. GEUS
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy