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THIRD
SECTION
CASE OF ROMET v. THE NETHERLANDS
(Application
no. 7094/06)
JUDGMENT
STRASBOURG
14
February 2012
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Romet v. the
Netherlands,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep Casadevall,
President,
Corneliu Bîrsan,
Alvina
Gyulumyan,
Egbert Myjer,
Ineta Ziemele,
Luis
López Guerra,
Mihai Poalelungi, judges,
and
Santiago Quesada, Section
Registrar,
Having
deliberated in private on 24 January 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 7094/06) against the Kingdom
of the Netherlands lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a Netherlands national, Mr
Steven Benito Romet (“the applicant”), on 10 February
2006.
- The applicant was represented by Mr H.F.M. Struycken, a
lawyer practising in Amsterdam. The Netherlands Government (“the
Government”) were represented by their Agent, Mr R.A.A. Böcker,
and Deputy Agent, Ms L. Egmond, both of the Ministry for Foreign
Affairs.
- The
applicant alleged, in particular, that there had been a violation of
Article 8 of the Convention in that a person or persons unknown had
been able to abuse his driving license after he had reported it lost
or stolen.
- On
30 June 2009 the application was communicated to the Government. It
was also decided to rule on the admissibility and merits of the
application at the same time (Article 29 § 3, as in force at the
time).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1968 and lives in Maastricht.
- 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.
- 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.
- 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.
- 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.
- 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).
- On
16 January 2004 the applicant again requested the Agency to annul,
with retroactive effect, the motor vehicle registrations in question.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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].”
- No
further appeal lay against this decision.
II. RELEVANT DOMESTIC LAW
A. The 1994 Road Traffic Act
-
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:
“Section 1
...
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. ...
Section 42
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. ...
Section 123
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. ...”
B. The Vehicle Registration Regulations
- At
the relevant time, the Vehicle Registration Regulations, in their
relevant part, provided as follows:
“Section 40
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. ”
C. The Vehicle Registration Certificates and
Registration Plates (Proof of Identity) Order
- 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:
“Section 2
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 ...”
D. The Traffic Regulations Administrative Enforcement
Act
- At
the relevant time, the Traffic Regulations Administrative Enforcement
Act (Wet Administratiefrechtelijke Handhaving
Verkeersvoorschriften), in its relevant part, provided as
follows:
“Section 5
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.
Section 6
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. ...
Section 8
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.
Section 9
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. ...
Section 28
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. ...”
E. Subsequent legislative developments
- 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.
- 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.
III. RELEVANT EUROPEAN UNION LAW
- 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:
“Article 2
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.
Article 6
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.
Article 7
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).
Article 12
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.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicant alleged a violation of his right to respect for his private
life in that persons unknown had been allowed to have entries in his
name made in the vehicle registration system without his consent by
fraudulently using his driving license. He relied on Article 8 of the
Convention, which reads as follows:
“1. Everyone has the right to respect
for his private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
- The
Government denied that there had been any such violation.
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. Government
- The
Government explained that in Netherlands domestic law the principle
applied that the person in whose name a motor vehicle was registered
was considered to be the owner or registered user of such vehicle.
That person was therefore liable to ensure compliance with road
traffic legislation, and thus to ensure payment of road tax, insure
the vehicle against liability for damage to third parties and meet
any obligations arising from the Traffic Regulations Administrative
Enforcement Act. It was only thus that road traffic legislation could
be enforced. The system existing previously had relied on the police
stopping motor vehicles to establish the identity of the driver,
which was not always possible. Entries in the vehicle registration
system were not changed retrospectively in order not to contaminate
the register.
- It
had, however, emerged already in 1995 and 1996 that the system was
being abused. It appeared that certain individuals, known as “straw
men”, had been persuaded to accept payment to allow vehicles to
be registered in their name even though the real owners and users
were other persons; this allowed the latter to escape his or her
statutory obligations with respect to the vehicle. It was in practice
virtually impossible to enforce any financial obligations against the
“straw men”, since they generally went into hiding or had
no assets.
- At
the relevant time, domestic law provided that a driving licence could
not be declared invalid until a replacement was requested. The
interference complained of had therefore been “in accordance
with the law”; it was the applicant who had delayed matters.
- The
Government argued that it was the responsibility of the holder of an
official identity document to guard against abuse. The applicant had
remained passive for several months after losing his driving license
for whatever reason. He had reported only on 3 November 1995 that it
had been mislaid or stolen in September of that year. So short a
delay could be accepted, since the applicant might reasonably hope
that his driving license might be found during that time. However,
the applicant could reasonably have been expected to ask for a
replacement driving license to be issued before so many cars were
registered in his name; this would have automatically invalidated the
one lost (section 123(1)(a) of the 1994 Road Traffic Act, see
paragraph 20 above). In fact, he had only applied for a replacement
driving license in 1997 and he had waited until 2004 before taking
any demonstrable effective action on the vehicle registrations. The
applicant’s argument that the cost of a new driving license was
prohibitive was unconvincing, since he had a car registered in his
name, for which he had to pay insurance – and which,
incidentally, he was not allowed to drive without a valid driving
license.
- More
generally, the Government stated that the misuse of identity
documents was a widespread and growing problem that had their full
attention; it was precisely for this reason that a new driving
licence, with additional safety features, had been introduced.
However, there were many individuals and companies with large numbers
of vehicles registered in their name; the number of vehicles already
registered in someone’s name was therefore not an acceptable
criterion for refusing further registrations.
2. Applicant
- The
applicant argued that the interference with his rights under Article
8 had not been “in accordance with the law”: it did not
follow logically from section 123(1)(a) of the 1994 Road Traffic Act
that the only way to prevent such fraud was to apply for a new
driving license. In addition, the registration of the vehicles in his
name was incompatible with Article 7 § 1 of 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 (see paragraph 26
above) in that it had been done without his unambiguous consent.
- At
the relevant time identity fraud using stolen driving licenses had
clearly been very easy; this had been the result of negligence on the
part of the respondent Party. The fault had not been his. In fact, he
had brought the matter of the false registrations to the attention of
the domestic authorities on several occasions between 1997 and 2004
but to no avail.
3. The Court’s assessment
a. Interference
- The
Court takes the view that the failure to invalidate the applicant’s
driving license as soon as the applicant reported it missing, which
made abuse of the applicant’s identity by other persons
possible, constitutes an “interference” with the
applicant’s right to respect for his “private life”.
b. In accordance with the law
- The
applicant’s submissions notwithstanding, the Court accepts that
the interference had a basis in domestic law, namely section 123 of
the Road Traffic Act and section 40 of the Vehicle Registration
Regulations as construed by the Administrative Jurisdiction Division.
- As
regards Directive 95/46/EC, on which the applicant relies, the Court
notes that for purposes of the Convention it binds domestic
authorities only in the form in which it has been transposed into
domestic law (see mutatis mutandis K.R.S. v. the United Kingdom
(dec.), no. 32733/08, 2 December 2008, and M.S.S. v. Belgium
and Greece [GC], no. 30696/09, § 250,
21 January 2011).
c. Legitimate aim
- The
Court accepts that the interference pursued a “legitimate aim”,
namely the “protection of the rights and freedoms of others”.
d. Necessary in a democratic society
- The
sole remaining question is whether the interference was “necessary
in a democratic society”.
- The
Court does not consider it necessary to delve into the question,
debated between the parties, whether the applicant took sufficient
action in respect of the false registrations of vehicles in his name.
It observes that on 3 November 1995 the applicant reported his
driving license stolen. It considers that from that day onward the
domestic authorities were no longer entitled to be unaware that
whoever might have the applicant’s driving license in his or
her possession was someone other than the applicant.
- Yet
the applicant’s driving license was invalidated only on
14 March 1997, when the applicant obtained a replacement.
After that date, apparently, no further vehicles were unlawfully
registered in the applicant’s name. Plainly, therefore, swift
administrative action to deprive a driving license of its usefulness
as an identity document was possible and practicable. The Government
have not satisfied the Court that such action could not have been
taken immediately after the applicant reported that he had lost
possession and control of the document.
- There
has accordingly been a violation of Article 8 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 7 OF THE CONVENTION
- The
applicant complained that the various fines and periods of detention
imposed on him constituted penalties for his failure to obtain a
replacement driving license immediately, although this was not a
crime defined by law. He relied on Article 7 of the Convention, which
provides as follows:
“1. No one shall be held guilty of any
criminal offence on account of any act or omission which did not
constitute a criminal offence under national or international law at
the time when it was committed. Nor shall a heavier penalty be
imposed than the one that was applicable at the time the criminal
offence was committed.
2. This article shall not prejudice the trial
and punishment of any person for any act or omission which, at the
time when it was committed, was criminal according to the general
principles of law recognised by civilised nations.”
- The
Government submitted that the applicant had not raised this matter in
the domestic proceedings.
- Leaving
aside the question whether the domestic remedies have been exhausted
in respect of this complaint, the Court finds nothing in the decision
of the Administrative Jurisdiction Division that admits of an
interpretation as suggested by the applicant.
- It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 (a) and 4 of
the Convention.
III. ALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE
CONVENTION
- The
applicant complained that he had been detained for offences committed
by others based solely on presumptions flowing from the registration
of vehicles in his name. He relied on under 6 § 2 of the
Convention, which provides as follows:
“Everyone charged with a criminal offence shall be
presumed innocent until proved guilty according to law.”
- The
Government submitted that the administrative-law proceedings pursued
by the applicant had been appropriate to his attempts to secure the
annulment of the fraudulent registrations in his name of the vehicles
but not to this complaint. Where the applicant had made use of the
procedure offered by the Traffic Regulations Administrative
Enforcement Act, he had failed to raise this matter before the
domestic authorities.
- Again
leaving aside the question whether the requirements of Article 35
§ 1 of the Convention have been met, the Court points out that
in Falk v. the Netherlands (dec.), no. 66273/01,
ECHR 2004-XI, it
found, inter
alia,
that a person fined under Article 5 of the Traffic
Regulations Administrative Enforcement Act could challenge the fine
before a trial court with full competence in the matter. In such
proceedings, the person concerned was not left without means of
defence given that he or she could raise arguments based on section 8
of that Act.
- The
Court notes that, in light of the latter provision, the argument that
the traffic offences had been committed by a person or persons other
than himself was available to the applicant; the fact that the fines
related to cars falsely registered in the applicant’s name
therefore did not deprive the applicant of the rights of the defence.
- It
follows that this complaint too is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 (a) and 4 of
the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
- The
applicant complained that his detention under section 28 of the
Traffic Regulations Administrative Enforcement Act constituted
deprivation of liberty not ordered by a competent court. When he had
been committed for detention after failing to pay the fine, there had
been no re-examination of the original decision imposing the fine
even though the original decision had been flawed through not having
reached him and because the offence had been committed by someone
else. He relied on Article 5 of the Convention, which, in its
relevant part, provides as follows:
“1. Everyone has the right to liberty
and security of person. No one shall be deprived of his liberty save
in the following cases and in accordance with a procedure prescribed
by law:
(a) the lawful detention of a person after
conviction by a competent court;
(b) the lawful arrest or detention of a
person for non- compliance with the lawful order of a court or in
order to secure the fulfilment of any obligation prescribed by law;
...”
- The
Government submitted that the applicant had failed to exhaust the
available domestic remedies.
- The
Court takes the view that the issue before it is whether the
available procedural guarantees were appropriate and sufficient; a
question identical to whether the available remedies were effective.
It will therefore address the substance of the complaint without
ruling separately on the Government’s preliminary objection of
non-exhaustion.
- On
the applicant’s own admission, correspondence from public
authority did not reach him because he had gone into hiding. It
further notes that the applicant had the right to object to the
public prosecutor against the imposition of the administrative fines
(section 6 of the Traffic Regulations Administrative Enforcement
Act); to apply to the District Court on the ground that he had not
committed the offences (section 8); and to be heard by the District
Court before the order to commit him to detention was given (section
28(2)) (see paragraph 23 above). These procedural guarantees are, in
principle, adequate.
- The
Court notes in addition that the applicant might reasonably have been
expected to ensure that correspondence from the authorities reached
him; the authorities cannot be held responsible for his failure to
exercise his procedural rights because he failed to make the
necessary arrangements (mutatis mutandis, Hennings v.
Germany, 16 December 1992, § 26, Series A no. 251 A).
- It
follows that this complaint also is manifestly ill-founded and must
be rejected in accordance with Article 35 §§ 3 (a) and 4 of
the Convention.
V. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- In
a supplementary document submitted to the Court by letter of
22 August 2008, the applicant complained that the Council of
State was not an independent and impartial tribunal. He relied on
Article 6 § 1, which, in its relevant part, provides as follows:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing ... by an
independent and impartial tribunal established by law.”
- The
Court observes that the final domestic decision in the case was that
given by the Administrative Jurisdiction Division on 7 December 2005,
that is more than six months earlier. It follows that this complaint
has been introduced out of time and must be rejected in accordance
with Article 35 §§ 1 and 4 of the
Convention.
VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
The
applicant claimed compensation of pecuniary and non-pecuniary damage
and costs and expenses.
A. Pecuniary and non-pecuniary damage
- The
applicant claimed the following sums in respect of pecuniary and
non-pecuniary damage:
83,701.86 euros
(EUR), the estimated sum which he had lost in respect of lost
social-security benefits;
EUR 11,000 towards
the interest on debts which he was unable to service as a result of
having lost his income;
EUR 500, the
estimated total of the fines which he had had to pay, which had been
advanced by members of his family;
EUR 4,530 for the
time that he spent in detention, calculated according to domestic
rates;
EUR 100,000 in a
single sum for “emotional damages” and the resulting
loss of earning capacity in the future.
- The
Government submitted that these claims were unsubstantiated and in
any case unreasonably high. They also questioned the likelihood that
the applicant would ever have had any future income not derived from
social security.
- Rule 60 of the Rules of Court provides, inter alia,
that “the applicant must submit itemised particulars of all
claims, together with any relevant supporting documents”,
failing which “the Chamber may reject the claim in whole or in
part”. The attention of the applicant’s representative
was drawn to this provision by the Registrar at the appropriate stage
of the proceedings.
- As
to pecuniary damage, itemised particulars and supporting documents
are entirely lacking. The Court therefore rejects the claims under
these heads in their entirety.
- The
Court accepts however that the applicant suffered non-pecuniary
damage as a result of the violation found. Deciding on an equitable
basis, it awards the applicant EUR 9,000 under this head.
B. Costs and expenses
- The
applicant claimed the following sums in respect of costs and
expenses:
EUR 900, the total
of the mandatory personal contributions (eigen bijdragen) and
court registration fees which he had had to pay in the domestic
proceedings;
EUR 250 per hour,
plus value-added tax, for lawyers’ fees covering an
unspecified number of hours.
- The
Government drew attention to the absence of precision of these claims
and the lack of supporting documents.
- The
Court notes that these claims are entirely unspecified and
unsupported by documentary evidence. Having regard to the clear terms
of Rule 60 and referring to paragraph 65 above, it therefore rejects
them.
C. Default interest
- The
Court considers it appropriate that the default interest rate should
be based on the marginal lending rate of the European Central Bank,
to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning Article 8 of
the Convention admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
8 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 9,000 (nine
thousand euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 14 February 2012,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep Casadevall
Registrar President
