CASE OF ROMET v. THE NETHERLANDS
Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Luis López Guerra;Mihai Poalelungi
5. The applicant was born in 1968 and lives in Maastricht. 6. On 3 November 1995 the applicant reported to the police that his driving licence had been stolen in September of that year. On 14 March 1997 the applicant was issued with a new driving licence. He had applied for it only shortly before, i.e. in 1997. 7. During the intervening period, between 3 November 1995 and 14 March 1997, the Government Road Transport Agency (Rijksdienst voor het Wegverkeer – “the Agency”) registered a total of 1,737 motor vehicles in the applicant’s name in the vehicle registration system (kentekenregister), but without his consent. It would appear that these registrations were effected upon presentation of the applicant’s stolen driving licence. 8. As a consequence of these vehicles being registered in his name, the applicant received large numbers of motor vehicle tax assessments (aanslagen motorrijtuigenbelasting/houderschapsbelasting), he was on many occasions prosecuted on the basis of the Motor Liability Insurance Act (Wet aansprakelijkheidsverzekering motorrijtuigen) and fined by the public prosecutor (officier van justitie) on the basis of the Traffic Regulations Administrative Enforcement Act (Wet administratiefrechtelijk handhaving verkeersvoorschriften) in respect of offences committed with the cars. Having been ordered by the competent court to pay these fines, he was detained for failure to comply with these orders (gijzeling) pursuant to Article 28 of the latter Act. The applicant ended up paying fines imposed on him on the basis of these motor vehicle registrations in respect of offences not committed by him. On several occasions the applicant was held liable by the Motor Traffic Guarantee Fund (Waarborgfonds Motorverkeer) for damage caused by uninsured vehicles registered in his name. The applicant’s welfare benefits were stopped, as his financial means were considered to be quite adequate in view of the sheer number of vehicles registered in his name. 9. The applicant alleges that on 1 July 1996 he requested the Agency to annul all the vehicle registrations, bar the one relating to his own car and was met with a refusal. Likewise, he alleges that he made several unsuccessful attempts in 1996 to rectify the situation by, inter alia, writing complaints to the Public Prosecutor who had imposed fines on him. The Government state that no official record exists to support these allegations. 10. The applicant furthermore appealed, on 12 February 2004, to the Amsterdam Court of Appeal (gerechtshof) against the refusal of the Public Prosecution Service (Openbaar Ministerie) to prosecute those responsible for the malicious vehicle registrations in his name. In its decision of 22 June 2005, the Court of Appeal considered, as relevant to the case before the Court, that although the police could admittedly have proceeded more effectively with the investigation, too much time had passed (the events in issue, i.e. the malicious registration of motor vehicles, had taken place between November 1995 and March 1997) to expect any viable investigation to be conducted by the authorities concerned. The Court of Appeal therefore dismissed the appeal, but it nevertheless noted that it was in favour of the course of action as advised by the Advocate-General, namely a complete remission in a single administrative act (eenmalige sanering) of all (administrative) sanctions imposed on the applicant which were an effect of the malicious registrations. According to the applicant’s representative, no such remission took place. Moreover, the Tax and Customs Administration (Belastingdienst) initially prevented the applicant from being eligible for debt rescheduling under the Debt Rescheduling (Natural Persons) Act (Wet Schuldsanering Natuurlijke Personen). 11. On 16 January 2004 the applicant again requested the Agency to annul, with retroactive effect, the motor vehicle registrations in question. 12. On 3 April 2004 the Agency partially granted the request, cancelling 240 registrations as of that date. The remaining registrations were no longer in the applicant’s name at that time. The Agency expressly stated that it was unable to cancel the registrations retroactively, as had been requested by the applicant, as that would be detrimental to the reliability of the motor vehicle registration system. 13. The applicant lodged an objection on 28 April 2004, arguing, in particular, that the motor vehicle registration system was already flawed owing to the existence of the impugned registrations; that not granting the desired retroactive effect would have substantial financial consequences for him; and that the Agency, in 1996, had offered to annul the stolen driving licence for purposes of motor vehicle registrations on condition that the applicant apply for a new licence, which condition the applicant had been unable to meet at that time for financial reasons. 14. The applicant’s objection was dismissed on 2 September 2004. The Agency decided that cancellation of registrations with retroactive effect would lead to legal uncertainty and would entail the Agency’s interference with competencies of other authorities, e.g. the Public Prosecution Service or the Tax and Customs Administration, in that it could affect the legality of decisions which those authorities had made or might make on the basis of the contents of the motor vehicle registration system. 15. The applicant appealed against the Agency’s decision to the Rotterdam Regional Court (rechtbank), arguing in particular that he had, already in 1996, made a similar request to the Agency and had reported the fraudulent use of his driving licence to the police, yet to no avail. The applicant also submitted that the motor vehicle registration system, as it was at the relevant time, had been sensitive to fraud, a risk which, in the applicant’s view, should not be for the general population to bear. He argued furthermore that the requirement which existed in 1996 to have to apply for a new driving licence in order to disallow motor vehicle registrations with a stolen one was unjust and discriminatory. 16. The Regional Court concurred with the Agency’s decision and considered that no exceptional circumstances existed warranting a deviation from the standard practice not to grant retroactive effect. It noted in that respect that, although he had lodged complaints in 1996, the applicant had allowed more than seven years to pass before starting the proceedings at issue. 17. On 5 April 2005 the applicant appealed against the Regional Court’s judgment to the Administrative Jurisdiction Division of the Council of State (Afdeling Bestuursrechtspraak van de Raad van State – “the Administrative Jurisdiction Division”). The applicant argued, in relevant part, that his rights under Article 8 of the Convention were being violated due to the unlawful registrations of motor vehicles in his name and that the vehicle registration system was flawed in that it allowed such large-scale fraud to occur so easily. 18. The Administrative Jurisdiction Division gave its decision on 7 December 2005. Its reasoning included the following: “As the Administrative Jurisdiction Division has held [in an earlier case], it cannot be found that the Agency’s policy of denying in principle retroactive effect to decisions ... to cancel the registration of a vehicle is not reasonable. The purity of the vehicle register and legal certainty of the registration of vehicles justify such a policy, as the Regional Court has rightly held. The Regional Court has rightly held that the Agency was not obliged to consider the applicant’s submissions in this matter a ground to deviate from this policy and retroactively cancel the registration of the said motor cars with effect from the date requested by the applicant. That being so, the applicant’s complaint that the Regional Court’s decision is incomprehensible and improperly reasoned must fail. As regards the [applicant’s] argument that the Vehicle Registration Regulations (Kentekenreglement) violate, inter alia, Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (Official Journal L 281, 23/11/1995; hereafter: the Directive), the Administrative Jurisdiction Division finds as follows. Contrary to what the [applicant] suggests, it cannot be deduced from the fact that the guideline includes a right of correction that the processor of those personal data is obliged to do so sua sponte and unasked and might not make the desired correction dependent on a request to that effect. In addition, contrary to what the [applicant] suggests, the processing of personal data pursuant to the Directive is also permitted without the permission of the person concerned if such processing is necessary for the performance of a task carried out in the exercise of official authority. In the opinion of the Administrative Jurisdiction Division, the use of a driving license involves recording the data of that driving license in a data filing system and processing them in the performance of the duty to secure compliance with legal obligations such as those here in issue. The [applicant’s] complaint fails. Nor does the Administrative Jurisdiction Division agree with the [applicant] that the Vehicle Registration Regulations violate the right to liberty and security of person, laid down in Article 5 of the Convention and Article 9 of the International Covenant on Civil and Political Rights. Regardless of whether these provisions can be relevant to the decision-making process based on the Vehicle Registration Regulations – these regulations do not, after all, provide for the deprivation of liberty referred to by the [applicant] – these provisions contain an exception to the right to liberty and security of person in order to secure the fulfilment of an obligation prescribed by law. In this connection, the Administrative Jurisdiction Division notes in addition that this exception is also covered by the circumstance, referred to by the [applicant], that he was deprived of his liberty because he had not taken the measures needed to correct the [registration of vehicles wrongly registered in his name].” 19. No further appeal lay against this decision. 20. The 1994 Road Traffic Act (Wegenverkeerswet 1994) entered into force on 1 January 1995. At the relevant time, as pertinent to the case before the Court, it provided as follows: ... 3. A person to whom a registration number (kenteken) for a vehicle or trailer is issued will be treated, subject to evidence to the contrary, as the owner or registered user (houder) of that vehicle or trailer for the purposes of the provisions laid down by or pursuant to this Act. ... 1. The Government Road Transport Agency shall keep a vehicle registration system listing the registration numbers issued. 2. The vehicle registration system shall contain data concerning vehicles and trailers for which a registration number has been issued and the name of the person to whom such registration numbers have been issued, as well as data concerning other vehicles and trailers in so far as such data: (a) are necessary for the proper implementation of this Act and for the enforcement of the regulations laid down by or pursuant to this Act, or (b) are necessary for the proper implementation of the Motor Vehicle Tax Act 1994, the Car and Motorcycle Tax Act 1992, the Motor Liability Insurance Act or other statutory provisions concerning vehicles and trailers, and for the enforcement of the regulations laid down by or pursuant to these statutory provisions. ... 1. Without prejudice to section 122 and section 131, subsection 3, a driving licence will cease to be valid: (a) when a new or replacement driving licence is issued; (b) when it is exchanged for a driving licence issued to the holder by a competent authority outside the Netherlands for the category or categories of motor vehicle to which the exchange relates; (c) during a period in which the holder is disqualified from driving vehicles; (d) if unauthorised changes are made to it; (e) upon the death of the holder; and (f) when it is declared invalid for the category or categories to which the declaration of invalidity relates. ...” 21. At the relevant time, the Vehicle Registration Regulations, in their relevant part, provided as follows: 1. The registration in the register will lapse as soon as: ... (h) Our Minister has declared the registration certificate to be invalid ...; ... (k) Our Minister has declared the registration to have lapsed on the grounds of a request as referred to in paragraph 2. 2. A person who is, in his view, wrongly listed in the register as the holder of a registration certificate may request Our Minister to arrange for the registration to be cancelled. Our Minister will arrange for the registration to be cancelled if he considers that sufficient grounds exist for this. ” 22. At the relevant time, the Vehicle Registration Certificates and Registration Plates (Proof of Identity) Order (Regeling legitimatievoorschriften kentekenbewijzen en kentekenplaten), in its relevant part, provided as follows: 1. The following identity documents shall be presented with an application for part II of a registration certificate if the application is submitted by a natural person: (a) a valid driving licence ...” 23. At the relevant time, the Traffic Regulations Administrative Enforcement Act (Wet Administratiefrechtelijke Handhaving Verkeersvoorschriften), in its relevant part, provided as follows: If it has been established that a vehicle for which a registration number has been issued was involved or instrumental in the action [i.e., for present purposes, the offence] and the identity of the driver of the vehicle cannot immediately be established, the administrative fine will be imposed on the person listed in the vehicle registration system as the holder of the registration certificate at the time of the action. The provisions of section 8 will be drawn to his attention. 1. The person to whom a decision is addressed may challenge the imposition of the administrative sanction by applying to the public prosecutor in the district court area in which the action took place. If it cannot be determined in which district court area the action took place, the application may be made to the public prosecutor in the district court area in which the person concerned has his place of residence. ... If, in the case of section 5, the holder of the registration certificate as listed in the vehicle registration system plausibly shows that the vehicle was used by another person against his will and that he could not reasonably have been expected to prevent this use, if he produces a written contract of hire entered into for a term not exceeding three months showing who was the hirer of the vehicle at the time of the action or if he produces a notice of indemnity issued pursuant to the Road Traffic Act 1994 showing that at the time of the action he was no longer the owner or keeper of the vehicle concerned, the public prosecutor will quash the decision. In such a case the public prosecutor may impose an administrative sanction on the person who performed the action, the person who was the hirer of the vehicle or the person to whom the vehicle was transferred. [Section 6] will then apply by analogy. 1. A person who has challenged the imposition of the administrative sanction may apply to the District Court (kantonrechter) within whose area the action took place or, in the case referred to in section 6, subsection 1, second sentence, to the District Court within whose area the person concerned has his place of residence, for judicial review of the decision of the public prosecutor. 2. The application for review may be lodged on the grounds that: (a) the action did not occur or, other than in the case of section 5, the person to whom the decision is addressed did not perform the alleged action; (b) the public prosecutor should have decided that the circumstances in which the action occurred did not warrant the imposition of an administrative sanction or that, in view of the circumstances of the person concerned, the administrative sanction should have been set at a lower amount; (c) the public prosecutor wrongly failed to quash the decision by virtue of section 8. ... 1. If the amount [of the administrative fine] has not been recovered – or not recovered in full – in accordance with sections 26 and 27, the public prosecutor may, no later than three years after a final and unappealable decision has been given in respect of the imposed administrative fine, apply to the District Court in the area in which the person subject to the fine has his address for an order authorising him to apply one or more of the following coercive measures for each action in respect of which an administrative sanction has been imposed: (a) taking the vehicle which was involved in the action out of commission (or, if it cannot be found, a similar vehicle in the possession of the person on whom the administrative sanction has been imposed) for a maximum of one month; (b) confiscating the driving license of the person on whom the administrative sanction has been imposed for a maximum of one month; (c) committing the person on whom the administrative sanction has been imposed to a remand centre for a maximum of one week. ... 2. No decision will be made on the application until after the person on whom the sanction has been imposed has been heard by the District Court or has in any event been properly summonsed to appear. No appeal or other remedy lies against the decision. ...” 24. Section 123(1)(h) of the 1994 Road Traffic Act, enacted by the Act of 28 June 2006, Staatsblad (Official Gazette) 2006, no. 321, provides that a driving license will cease to be valid when it is reported missing. It entered into force on 1 October 2006. 25. Also on 1 October 2006 a new model driving licence was introduced. It includes a number of security features aimed at countering misuse which the previous models lacked. 26. As relevant to the case before the Court, Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (Official Journal L 281, 23/11/1995) provides as follows: Definitions For the purposes of this Directive: (a) ’personal data’ shall mean any information relating to an identified or identifiable natural person (‘data subject’); an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his physical, physiological, mental, economic, cultural or social identity; (b) ’processing of personal data’ (‘processing’) shall mean any operation or set of operations which is performed upon personal data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction; (c) ’personal data filing system’ (‘filing system’) shall mean any structured set of personal data which are accessible according to specific criteria, whether centralized, decentralized or dispersed on a functional or geographical basis; (d) ’controller’ shall mean the natural or legal person, public authority, agency or any other body which alone or jointly with others determines the purposes and means of the processing of personal data; where the purposes and means of processing are determined by national or Community laws or regulations, the controller or the specific criteria for his nomination may be designated by national or Community law; (e) ’processor’ shall mean a natural or legal person, public authority, agency or any other body which processes personal data on behalf of the controller; (f) ’third party’ shall mean any natural or legal person, public authority, agency or any other body other than the data subject, the controller, the processor and the persons who, under the direct authority of the controller or the processor, are authorized to process the data; (g) ’recipient’ shall mean a natural or legal person, public authority, agency or any other body to whom data are disclosed, whether a third party or not; however, authorities which may receive data in the framework of a particular inquiry shall not be regarded as recipients; (h) ’the data subject’s consent’ shall mean any freely given specific and informed indication of his wishes by which the data subject signifies his agreement to personal data relating to him being processed. 1. Member States shall provide that personal data must be: (a) processed fairly and lawfully; (b) collected for specified, explicit and legitimate purposes and not further processed in a way incompatible with those purposes. Further processing of data for historical, statistical or scientific purposes shall not be considered as incompatible provided that Member States provide appropriate safeguards; (c) adequate, relevant and not excessive in relation to the purposes for which they are collected and/or further processed; (d) accurate and, where necessary, kept up to date; every reasonable step must be taken to ensure that data which are inaccurate or incomplete, having regard to the purposes for which they were collected or for which they are further processed, are erased or rectified; (e) kept in a form which permits identification of data subjects for no longer than is necessary for the purposes for which the data were collected or for which they are further processed. Member States shall lay down appropriate safeguards for personal data stored for longer periods for historical, statistical or scientific use. 2. It shall be for the controller to ensure that paragraph 1 is complied with. Member States shall provide that personal data may be processed only if: (a) the data subject has unambiguously given his consent; or (b) processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract; or (c) processing is necessary for compliance with a legal obligation to which the controller is subject; or (d) processing is necessary in order to protect the vital interests of the data subject; or (e) processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller or in a third party to whom the data are disclosed; or (f) processing is necessary for the purposes of the legitimate interests pursued by the controller or by the third party or parties to whom the data are disclosed, except where such interests are overridden by the interests for fundamental rights and freedoms of the data subject which require protection under Article 1 (1). Right of access Member States shall guarantee every data subject the right to obtain from the controller: (a) without constraint at reasonable intervals and without excessive delay or expense: - confirmation as to whether or not data relating to him are being processed and information at least as to the purposes of the processing, the categories of data concerned, and the recipients or categories of recipients to whom the data are disclosed, - communication to him in an intelligible form of the data undergoing processing and of any available information as to their source, - knowledge of the logic involved in any automatic processing of data concerning him at least in the case of the automated decisions referred to in Article 15 (1); (b) as appropriate the rectification, erasure or blocking of data the processing of which does not comply with the provisions of this Directive, in particular because of the incomplete or inaccurate nature of the data; (c) notification to third parties to whom the data have been disclosed of any rectification, erasure or blocking carried out in compliance with (b), unless this proves impossible or involves a disproportionate effort.”