Lexploria

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)

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DUHS v. SWEDEN

DUHS v. SWEDEN

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