Lexploria

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 TÃ¥rnby 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 TÃ¥rnby 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 TÃ¥rnby 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, HÃ¥kansson 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-Ã…ke 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-Ã…ke 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

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PETERSEN v. DENMARK

PETERSEN v. DENMARK

LEXI