FALK v. THE NETHERLANDS
Inadmissible
The applicant, Mr Joost Falk, is a Netherlands national who was born in 1970 and lives in Noordwijk. The respondent Government are represented by their Agent, Mr R.A.A. Böcker, of the Netherlands Ministry of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. On 10 February 1998, in accordance with Article 5 of the Respect for Traffic Regulations (Administrative Enforcement) Act (Wet Administratiefrechtelijke Handhaving Verkeersvoorschriften – “the Act”), an administrative fine of 240 Netherlands guilders (NLG) (108.91 euros) was imposed on the applicant for a traffic offence – namely having failed to give way to a pedestrian who wanted to cross the road at a pedestrian crossing – that had been committed on 20 January 1998 with a car registered in his name. On 28 September 1998 the applicant filed an appeal against the fine with the public prosecutor of The Hague under Article 6 of the Act. He informed the public prosecutor of the name and address of Mr B., who had been driving his car on 20 January 1998. The applicant further explained that, after he had been declared bankrupt on 1 July 1998, he had become embroiled with Mr B. to such a degree that reclaiming the fine from him was bound to fail. On 17 November 1998 the public prosecutor of The Hague rejected the applicant's appeal, holding that the applicant, being the registered owner of the car, remained liable under Article 5 of the Act to pay the fine. On 28 December 1998 the applicant filed an appeal against this decision with the Leiden District Court Judge (kantonrechter) under Article 9 of the Act. At a hearing held on 7 June 1999 before the Leiden District Court Judge, the applicant stated that he was the registered owner of the car, but that Mr B. was the actual driver who had committed the offence. On 8 November 1999 the Leiden District Court Judge rejected the applicant's appeal, holding that the fact that the applicant was not the driver who had committed the traffic offence did not mean that a fine could not be imposed as, in accordance with the Act, the person in whose name the car was registered remained liable. A subsequent cassation appeal by the applicant was rejected by the Supreme Court (Hoge Raad) on 28 November 2000. Referring to the findings in its judgment of 15 July 1993 (Nederlandse Jurisprudentie 1994, no. 177), the Supreme Court rejected the applicant's complaint that Article 5 of the Act was incompatible with Article 6 § 2 of the Convention. The Respect for Traffic Regulations (Administrative Enforcement) Act provides for the possibility of imposing an administrative fine – at the relevant time up to a maximum of NLG 750 (340.34 euros) – for defined categories of minor offences against, inter alia, the 1994 Road Traffic Act (Wegenverkeerswet) where such an offence has not caused injury to persons or damage to goods (Article 2 of the Act). Where the offence has been committed by a registered motor vehicle and the identity of the actual driver could not be established at the material time, the fine is imposed on the registered owner of the vehicle (Article 5 of the Act), unless the registered owner demonstrates that his or her vehicle was used by another person against his or her will and that he or she was unable to prevent this use, or that the vehicle was commercially hired out for a period not exceeding three months, or that at the material time he or she had already sold the vehicle to another person who had provided a written warranty against liability (Article 8 of the Act ). A fine imposed under the Act for an offence under the 1994 Road Traffic Act is not recorded in the criminal records (strafregister) within the meaning of the Judicial Records and Certificates of Good Behaviour Act (Wet op de Justitiële Documentatie en op de Verklaringen omtrent het Gedrag), as it does not constitute a crime (misdrijf) or a minor offence (overtreding) for which a prison sentence not being an alternative to a fine has been imposed. In a judgment given on 16 February 1993 the Supreme Court rejected the argument that Article 5 of the Act should not be applied in a situation where the identity of the actual driver had not been immediately established and where the registered owner of the car had informed the public prosecutor immediately after the imposition of the fine under Article 5 of the identity of the actual driver. It held in this respect: “This conception of Article 5 [of the Act] cannot be accepted as correct. It rests on an unjust understanding [of this provision] ...The explanatory memorandum to the bill which gave rise to the [Act] contains in relation to Article 5 inter alia the following (p. 41): 'A large part of the detection of minor offences against traffic regulations takes place with the aid of technical equipment ...There is no direct confrontation between a police officer and an offender in such cases. The same applies to the majority of parking offences. In such cases, where it cannot be immediately established who was the driver of the vehicle with which ... the offence has been committed, the administrative sanction will be imposed on the registration-number holder, pursuant to [Article 5 of the Act].' On this basis it must be assumed that the expression contained in Article 5 [of the Act] 'if it cannot be immediately established who ... is the driver' relates to those cases in which traffic offences are detected by technical means or otherwise in the absence of a realistic opportunity for the police – taking into account factors such as road and traffic safety and the factual impossibility of having recourse to continuous surveillance – to stop the driver. The mere circumstance that the registration-number holder, immediately after having received the decision imposing the administrative sanction, has informed the public prosecution department who the driver was, does not therefore exclude the application of Article 5 [of the Act].” In a judgment given on 15 July 1993 (Nederlandse Jurisprudentie 1994, no. 177), the Supreme Court concluded that Article 5 of the Act was not incompatible with Article 6 § 2 of the Convention. This judgment, insofar as relevant, reads: “5.3.1. The explanatory memorandum to the bill which gave rise to the [Act] states, inter alia, ... 'The bill departs from the idea that the administrative sanction (which is to be understood as a payment to the State of a certain sum of money ...) is imposed, according to Article 5 [of the Act], on the person in whose name a [motor vehicle] licence (kenteken) is registered at the material time, if it has been established that the act [in violation of the 1994 Road Traffic Act] has taken place with ... a motor vehicle for which a licence has been issued and where it cannot be established immediately who the driver is. This rule, to which an exception is possible ... (Article 8) ... will have as its consequence that the above-mentioned time-consuming procedures entailing a hearing and the sending out and processing of response coupons, will become defunct.' 5.3.2. The memorandum of reply to the cited bill states, inter alia, ...: 'The question whether or how the registered owner wants to reclaim the amount due from the “minor” offender is governed by the rules of civil law.' and 'Our conclusion is that there is a possibility of limiting the strict liability rule for the registered owner, but we consider such a limitation in respect of minor traffic offences, to which this bill relates, neither necessary nor desirable. The person concerned has, after all, other ways of reclaiming the amount of the fine from the user of the car.' 5.3.3. During the oral debate on the bill in the Lower House, the Minister of Justice stated, inter alia, ...: 'In an administrative-law system, I consider it more correct to leave it to the registered owner himself to take the necessary action to collect the sum he has lost as a result of the commission of the minor offence. He ought not to be permitted to leave that risk to society.' 5.4 In view of the considerations under 5.3, Article 5 of the [Act] is thus to be understood as meaning that, when imposing an administrative sanction on the basis of this provision on a registered owner [of a motor vehicle], the latter is not reproached for his conduct ... [in violation of the 1994 Road Traffic Act] ... but is merely made liable to pay – for the driver who is guilty of the conduct at issue – the amount of the administrative sanction imposed, and subsequently to reclaim, if so desired, the sum from the [actual driver]. Should the registered owner fail to take the appropriate measures, he runs the risk of his claim being unsuccessful. 5.5. Further taking into account, on the one hand: a. the extent of motorised traffic, often moving with great speed, and, as a result, the particular frequency of violations of traffic regulations; b. the limited possibilities for stopping traffic offenders and investigating traffic offences; c. the undesirability of leaving traffic offences unpunished as well as the interest of society in being able to take action against traffic offences; and, on the other hand: d. the circumstance that it may be assumed that in the vast majority of cases – certainly as regards the “private” part of road traffic – the driver of the motor vehicle is also the registered owner; e. the possibilities given by Articles 8 and 9 of the [Act] to the registered owner to oppose the imposition of the administrative sanction; f. the possibilities under civil law for the registered owner to reclaim, where he cannot oppose the administrative sanction under Article 8 or Article 9 of the [Act], the sum from the driver; and finally g. the fact that the imposition of an administrative sanction only concerns a limited financial sanction, the application of Article 5 of the [Act], understood as set out in 5.3 and 5.4, is not incompatible with the second paragraph of Article 6 of the Convention.” In a judgment delivered on 1 February 2000, the Supreme Court held that, in cases concerning a fine imposed under Article 5 of the Act, courts may as a rule assume that there was no realistic opportunity for the police to stop the driver for the purposes of establishing his or her identity. However, if on this point a defence argument is put forward that there was such an opportunity at the material time, the court should give an explicit decision on that argument (Verkeersrecht 2000/104). In a ruling given on 9 July 2003, the Leeuwarden Court of Appeal held that Article 5 of the Act was to be understood to mean that, if there had been a realistic opportunity of stopping the driver of the vehicle concerned, this provision should not be applied and that the sanction should be imposed on the driver. As, in that case, the case file contained no information from the reporting officer on the question whether there had been an opportunity to stop the driver, the Court of Appeal adjourned the proceedings and ordered the prosecution to submit that information within a period of two months (Verkeersrecht 2004/47).