SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 28971/95 by Hardy HANSEN against Denmark

The European Court of Human Rights ( Second Section ), sitting on 16 March 2000 as a Chamber composed of

Mr C.L. Rozakis, President , Mr M. Fischbach,

Mrs E. Palm, Mr G. Bonello, Mrs V. Strážnická, Mr A.B. Baka, Mr A. Kovler, judges ,

and Mr E. Fribergh , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 28 April 1995 and registered on 25 October 1995,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant is a Danish citizen, born in 1953.  He resides in Padborg , Denmark.  Before the Commission the applicant is represented by Mr Anders Hjulmand and Mr Tyge Trier , lawyers practising in Aalborg and Frederiksberg , respectively.

The facts of the case, as submitted by the parties, may be summarised as follows.

A. Particular circumstances of the case

The applicant was at the relevant time, and continues to be, the managing director of Hansen & Søn I/S, a limited partnership in Padborg , in the south of Jutland .  In 1984 the limited partnership owned approximately 12 lorries and had 14 drivers employed.  The applicant managed the limited partnership with his father, who died on 7 March 1994.

The police in Padborg interrogated the applicant on 17 August 1984 and informed him that he was charged with a violation of certain provisions of the EU Regulation No. 543/69 read in conjunction with the Ministerial Order No. 448 of 2 June 1981.  The basis for the charge was that one of the applicant's drivers was reported by Dutch police officers on 1 March 1984 to have been driving a lorry exceeding the maximum daily driving period and thus disregarding the compulsory daily rest period laid down in the EU Regulation on the harmonisation of certain social legislation relating to road transport.

By indictment of 23 November 1984 charges were brought against the applicant's company, represented by him, as well as the driver of the lorry.  The charges against the company were based on the fact that it was the owner of the lorry, the driver's employer and that the transport had taken place in its interest.

By judgment of 28 July 1987 the Graasten City Court found the driver guilty of the charges brought against him and sentenced him to a fine of 600 DKK.  With reference to the above Ministerial Order the applicant's company was furthermore sentenced to pay a fine of 1500 DKK although the infringement by the driver was not imputed to an intentional act or negligence on the part of the company.

The judgment was appealed against to the High Court of Western Denmark ( Vestre Landsret ) in so far as it concerned the conviction and sentence based on the company’s criminal liability.  Before the High Court the parties agreed that the charge ought to be directed against the applicant and his father, being the owners of the company, and not their company.  Before the High Court the applicant argued, inter alia , that strict criminal liability, as introduced by the 1981 Ministerial Order, was incompatible with the EU regulations as well as Denmark's obligations under Article 6 § 2 of the Convention.

On 28 January 1988 the High Court decided to stay the proceedings and to refer to the European Court of Justice in Luxembourg the question whether the use of strict criminal liability in general was precluded under the EU Regulation concerned.  By judgment of 10 July 1990 the European Court of Justice found that neither the EU Regulation relating to road transport nor the general principles of EU law precluded the application of national provisions subjecting the employer to a criminal penalty notwithstanding the fact the infringement could not be imputed to an intentional wrongful act or to negligence on the employer's part, on the condition that the penalty was similar to those imposed in the event of infringement of provisions of national law of a similar nature and importance, and was proportionate to the seriousness of the infringement committed.

By judgment of 18 October 1991 the High Court upheld the Graasten City Court judgment.  As regards Article 6 § 2 of the Convention the High Court stated as follows:

(Translation)

"... As the case lies before the High Court the only question which arises is whether [the applicant and his father] can be punished on the basis of strict liability since it is undisputed that  they have neither acted with criminal intent nor with negligence.

From the Supreme Court judgment of 25 September 1984 it is clear that a fine may be imposed on an employer by way of strict liability pursuant to the Ministerial Order No. 448 of 2 June 1981, and by judgment of 10 July 1990 the EU Court has found that such liability is not contrary to EU law.

...

The legal basis for strict liability fines within certain areas of law has been prevailing in Denmark for many years and Denmark's ratification of the Human Rights Convention did not cause Parliament to change that.

There appears to be no decisions from the Convention organs ... which expressly state, or from which it may be assumed, that strict liability fines are incompatible with Article 6 § 2 of the Convention.  On the contrary the Human Rights Court's judgment of 7 October 1988 (case of Salabiaku ) appears to imply that such liability - at least in certain circumstances - must be considered to be in accordance with the Convention. In the judgment it is stated, inter alia :

'In particular, and again in principle, the Contracting States may, under certain conditions, penalise a simple or objective fact as such, irrespective of whether it resulted from criminal intent or from negligence.  Examples of such offences may be found in the laws of the Contracting States.'

The High Court has on this basis no reason to find that the use of strict liability fines as such would be contrary to the Convention Article in question or other Convention Articles.  Having regard to the aim of imposing strict liability in cases as the present one, to the fact that it only concerns fines of a limited size and to the fact that strict liability fines shall not be imposed unconditionally in case of violations of the rules concerning driving and resting periods, the High Court does not find either that there are circumstances which should lead to the conclusion that imposing strict liability fines pursuant to the Ministerial Order would be contrary to the Convention Article in question as interpreted by the Human Rights Court in its judgment of 7 October 1988 ... ."

The applicant and his father were sentenced to a fine of 750 DKK each.

Following this judgment the applicant and his father requested, and were granted, leave to appeal to the Supreme Court ( Højesteret ).

By judgment of 4 November 1994 the Supreme Court upheld the judgment of the High Court for the reasons set out in the judgment as far as the applicant was concerned, noting that the applicant’s father had died.

B. Relevant domestic law

As a main rule, violations of the Danish Criminal Code ( straffeloven ) are punished only if committed with intent, while violations of penal provisions in other legislation (special legislation) can also be punished if they have been committed by negligence.  This main rule is laid down in section 19 of the Danish Criminal Code.

Strict individual liability, i.e., criminal liability of a physical person although the violation cannot be imputed to either that person’s intent or to his negligence, requires an authority in law.  Such authority is found in about 20 Acts.  The Criminal Code has no authority to impose strict individual liability.

Where strict individual liability is authorised, the liability will normally be an entrepreneur’s or employer’s liability for violations committed by others, typically employees.  In practice the liability is only of importance to owners of enterprises not operated as a corporation, the entrepreneurial liability is typically incumbent on the company as such.

Apart from the Media Liability Act ( mediansvarsloven ), which contains very special system of liability, strict individual liability is liability of a fine.  Thus, it is not possible to impose a custodial sentence.  Nor is any alternative sentence fixed instead of the fine.  In case of non-payment, strict liability of a fine cannot be converted into custody.

The applicant and the applicant’s employed driver were convicted of a violation of Order No. 448 of 2 June 1981 on worker protection in road transport.  The Order lays down sanctions for violations of EU regulations on the harmonisation of certain social legislation relating to road transport.

The relevant EU regulation prescribes that every crew member engaged in the carriage of goods shall have a daily rest period of not less than eleven consecutive hours during the twenty-four-hour period preceding any time when he drives or otherwise performs work.  Twice a week at the most, the daily rest period can be reduced to nine hours if the rest period is spent at the place where the crew is based, or eight hours if the rest period is spent away from the place where the crew is based.

The applicant’s employed driver was accused and convicted of a violation of section 7 of the Order, according to which violations of the above regulations on daily rest periods are punished with a fine unless other legislation imposes a more severe punishment.

The applicant was accused and convicted pursuant to section 9 of the Order, which reads as follows:

(Translation)

“(1) Liability of a fine can be imposed on an employer for a violation of ... sections 7 and 8( i ) and (iii) when the driving was carried out in his interest, although the violation cannot be imputed to his intent or negligence.

(2) ...

(3) No alternative sentence shall be stipulated for the liability of a fine pursuant to subsections  (1) and (2).”

Section 9 of Order No. 448 of June 1981 has been maintained in subsequent Orders.  The current Order No. 1018 of 15 December 1993 on worker protection within road transport thus also imposes strict liability of a fine on employers, cf. section 8.  Pursuant to the tariff system for fines stipulated administratively, the fine is now set at DKK 1, 000 for each count in the driving and rest period field.  If a carrier commits several violations, the fine is calculated by addition of the fines for the individual counts.

COMPLAINTS

1. The applicant complains that in his capacity as an employer of a road transport driver he has been sentenced to pay a fine although it is undisputed that the infringement of the rules regarding maximum daily driving periods and compulsory daily resting periods were not imputed to an intentional act or negligence on his part.  He maintains that the criminal sanction based on the Danish rules regarding strict criminal liability as used against him does not satisfy the requirements of Article 6 § 2 of the Convention.

2. The applicant complains furthermore that the criminal case against him was not heard within a reasonable time as it lasted more than 10 years.  He invokes in this respect Article 6 § 1 of the Convention.

THE LAW

1. The applicant complains of the fact that he has been sentenced to pay a fine although the offence committed could not be imputed to an intentional act or negligence on his part.  He invokes Article 6 § 2 of the Convention, which reads as follows:

“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

The applicant accepts that Member States have in principle a certain freedom to decide for which acts legislation can impose a penalty as well as the subjective requirements.  Such decisions are, however, subject to certain conditions such as what is at stake for the applicant and the right to an adequate defence.

The applicant maintains, that the Danish courts relied on an objective standard, thus presuming him guilty as a fact, and applied standards of criminal liability which indeed resemble an automatic reliance on a presumption of guilt.  He was not given reasonable conditions or any possibility of being acquitted as his right to a defence was in reality non ‑ existent.

The applicant furthermore points out that he was subjected to a criminal conviction with a substantial impact on his livelihood.  According to the relevant Danish regulation the fine is set at 1,000 DKK for each offence which should be seen together with the fact that Danish legislation contains the possibility of revoking his business licence.

In these circumstances the applicant considers that he has been deprived of the fundamental right to defend himself and subjected to an adverse principle of presumption of guilt.  The Danish courts did not, in his view, duly weigh the evidence, nor did they respect the right of defence, already because the legislation did not so require.

The Government submit that the institution of the provisions on strict liability in the present circumstances is to ensure that employed drivers and employers have a common interest in observing the driving and rest period regulations by eliminating the financial incentive that carriers may have in violations, and thus to reduce the risk of traffic accidents.

Without a system of strict liability it would be difficult to prove any fault on behalf of the employer.  The system also protects drivers against pressure by the employer into violating the rules.

The Government maintain, furthermore, that the sanctions cannot be said to be out of proportion.  The fines are modest and there is no possibility of fixing an alternative sentence.

Finally, the Government point out that the applicant was not deprived of the right to defend himself.  Even where the employed driver has been rightly convicted of a violation of the driving and rest periods strict individual liability will not be imposed on the accused employer if it is established that the violation occurred during driving which was exclusively in the driver’s own interest.  Furthermore, the defendant can defend himself with reference to the interpretation and application of the relevant provisions.

The Court recalls that in principle the Contracting States remain free to apply the criminal law to an act where it is not carried out in the normal exercise of one of the rights protected under the Convention and, accordingly, to define the constituent elements of the resulting offence.  In particular, the Contracting States may, under certain conditions, penalise a simple or objective fact as such, irrespective of whether it results from criminal intent or from negligence (cf. the Salabiaku judgment of 7 October 1988, Series A no. 141, p. 15 § 27).

However, in such circumstances the Contracting States must remain within reasonable limits which take into account the importance of what is at stake and maintain the rights of the defence (ibid. § 28).

In the present case the Court recalls that the Order No. 448 of 2 June 1981 was introduced to secure the fulfilment of EU regulations on the harmonisation of certain social legislation relating to road transport.  More specifically the offence at issue related to road safety and the Order in addition aims at eliminating the financial incitements which may exist in disregarding the rules.  The Court considers that this is an area where the Contracting States are well within the “reasonable limits which take into account what is at stake”.

Furthermore, even though the applicant did not as such commit the punishable act this does not mean that he was left entirely without a means of defence.  Not only was it necessary for the trial court to establish the employer/employee relationship between the applicant and the driver but it was also necessary to establish that the driver was driving in the interest of the employer.  There is nothing indicating that the courts in fulfilling their functions started from the assumption that the applicant was liable pursuant to the Ministerial Order.

Finally, the Court considers that the fines imposed do not appear disproportionate having regard to the aim pursued.

In these circumstances the Court finds that the national courts did not fail to respect the presumption of innocence.  Thus, the Court has found no appearance of a violation of Article 6 § 2 of the Convention.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

2. The applicant also complains of the length of the above proceedings and invokes in this respect Article 6 § 1 of the Convention. These proceedings commenced on 17 August 1984 and ended on 4 November 1994.  Accordingly, they lasted a total of 10 years, 2 months and 18 days.

The applicant considers that the length of the proceedings exceeds the reasonable time requirement set out in Article 6 § 1 of the Convention.  The Government contest this.

The Court considers, in the light of the criteria established in the case-law of the Convention organs on the question of “reasonable time”, and having regard to all the information in its possession, that an examination of the merits of the complaint is required.

For these reasons, the Court, unanimously,

DECLARES ADMISSIBLE , without prejudging the merits of the case, the complaint concerning the length of the proceedings.

DECLARES INADMISSIBLE the remainder of the application.

Erik Fribergh Christos Rozakis Registrar President