CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 16 avril 1998

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                           Application No. 28288/95                       by Flemming PETERSEN                       against Denmark           The European Commission of Human Rights (Second Chamber) sitting in private on 16 April 1998, the following members being present:              MM     J.-C. GEUS, President                  M.A. NOWICKI                  G. JÖRUNDSSON                  A. GÖZÜBÜYÜK                  J.-C. SOYER                  H. DANELIUS            Mrs    G.H. THUNE            MM     F. MARTINEZ                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY                  P. LORENZEN                  E. BIELIUNAS                  E.A. ALKEMA                  A. ARABADJIEV              Ms     M.-T. SCHOEPFER, Secretary to the Chamber           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 15 May 1995 by Flemming PETERSEN against Denmark and registered on 23 August 1995 under file No. 28288/95;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having deliberated;         Decides as follows:   THE FACTS         The applicant is a Danish citizen, born in 1945. He is a lawyer and resides in Dragør.         The facts of the case, as submitted by the applicant, may be summarised as follows.   A.     Particular circumstances of the case         On 24 January 1992 the applicant was ordered by the Chief of Police of Tårnby to pay a parking fee (parkeringsafgift), in the amount of 400 DKK as, allegedly, he had parked a trailer belonging to him in violation of section 1 of the Parking Ordinance for Tårnby Police District (Bekendtgørelse om parkering i Tårnby Politikreds). The amount of 400 DKK was fixed in accordance with section 121 of the Road Traffic Act (færdselsloven).         As the applicant did not pay the parking fee the case was sent to the Bailiff's Court (fogedretten) which is competent to hear claims for execution and to institute enforcement proceedings.         On 28 August 1992 the applicant was summoned to the Bailiff's Court. By letter of 21 October 1992 to the Bailiff's Court the applicant maintained that no parking offence had been committed. The case was heard on 26 October 1992 and 28 January 1993 during which the applicant had the opportunity to explain and submit what in his opinion was of relevance to the outcome of the case. "The plaintiff" during the proceedings in the Bailiff's Court was the Central Register for Parking Fees (Centralregisteret for Parkeringsafgifter) which is an administrative body under the National Chief of Police (Rigspoliti- chefen).         On 11 March 1993 the Bailiff's Court decided to provide the General Register with the necessary assistance to recover the fee and the costs involved. In its decision the Court stated, inter alia, as follows:   (Translation)         "The Parking Ordinance for Tårnby Police District of       7 June 1992 reads as follows:              '...              Section 1.            Parking of vehicles of a maximum gross weight            exceeding 3,500 kg (lorries, buses and the            like), trailers (including caravans), engine            implements and tractors is not allowed in the            time between 7.00 pm and 7.00 am, unless such            parking is permitted by special signposting at            certain road sections or sites.              However, trailers (including caravans) of a            maximum gross weight not exceeding 2,000 kg may            be parked at the places mentioned for up to 24            hours.              ...'       [The applicant] explained that he is a professional diver.       For the purpose of his profession he owns a trailer (tool       trailer) provided with diver's equipment, to allow him to       turn out at short notice around the clock when he is called       for. The trailer weighs approximately 1100 kg. [The       applicant] admits that the trailer was parked on ... for       more than 24 hours i.e. from 22 January 1992 at       approximately 10 a.m. to 23 January 1992 at 11 a.m.         The plaintiff has argued, in support of its claim, that a       trailer, within the meaning of section 1 subsection 2 of       the Parking Ordinance, is defined as follows in section 2       subsection 17 of the Road Traffic Act.              '17. Trailer:            a vehicle which is made for the purpose of being            drawn by another vehicle. Trailers are divided            into semitrailers, lorry trailers and mobile            implements.'         From a literal interpretation of section 1 subsection 2 of       the Ordinance and section [2] subsection 17 of the Road       Traffic Act the prohibition against parking a trailer for       more than 24 hours includes any trailer which is made for       the purpose of being drawn by another vehicle regardless of       whether or not the trailer was connected to the drawing       vehicle.         [The applicant] has argued in support of his claim that it       is not disputed that the trailer was connected to the       drawing vehicle in the observation period in issue. The       prohibition against parking a trailer for more than       24 hours only includes trailers which are parked alone       without being connected to the drawing vehicle. Thus, the       imposition of the parking fee on him is unfounded.         The Bailiff's Court's reasons:         With reference to the arguments put forward by the       plaintiff         It is decided:         The plaintiff's, the Central Register for Parking Fees,       request for execution against [the applicant], in respect       of a parking fee including costs in the amount of 700 DKK,       is admitted."         From the transcripts it appears that no objections were made to the competence or composition of the court. Nor did the applicant raise any questions as to the impartiality of the court.         On 19 March 1993 the applicant appealed against the decision to the High Court for Eastern Denmark (Østre Landsret). He maintained that the Bailiff's Court's decision was based on an incorrect interpretation of the law. In the applicant's written statements to the High Court he added new arguments as to the interpretation of the law. However, he did not base the appeal on misgivings as to the competence and composition of the Bailiff's Court. Nor did he raise any questions as to the impartiality of the Bailiff's Court or the High Court.       On 19 April 1993 the High Court upheld the Bailiff's Court's decision on the basis of an evaluation of the written material submitted. The decision reads as follows:   (Translation)         "Referring to the Bailiff's Court's reasoning and as the       arguments presented to the High Court make no difference as       to the result, the High Court agrees that the request for       execution is admitted."         On 29 April 1993 the applicant applied to the Ministry of Justice for leave to appeal to the Supreme Court (Højesteret). He alleged that the High Court's decision was based on a wrong interpretation of section 1 subsection 2 of the Parking Ordinance for Tårnby Police District and that the case implied matters of principle. However, he did not submit any allegations as to the competence or composition of the Bailiff's Court. Nor did he raise any questions as to the impartiality of the lower courts. On 21 October 1993 the Ministry of Justice refused leave to appeal.         On 8 March 1994 the applicant applied to the Supreme Court for permission to have his case examined by the Supreme Court pursuant to section 399 of the Administration of Justice Act (retsplejeloven) which in its subsections 1-3 reads as follows:   (Translation)         "Section 399.       Subsection 1. On an exceptional basis the Supreme Court may       allow the reopening of a case already decided upon by the       Court when:         1. it must be considered likely that the case contained       wrong information for which the applicant could not be       blamed and that, subsequent to its reopening, the case will       end with a considerably different result;         2. it must be considered obvious that, only through this       remedy, would the applicant be able to avoid or redress a       considerable loss; and         3. in other respects the circumstances speak, to a       considerable extent, in favour of a reopening.         Subsection 2. Under the conditions mentioned in       subsection 1 the Supreme Court may grant leave to appeal       against a judgment pronounced by a High Court or a City       Court notwithstanding that the statutory time-limit       (section 372 subsection 1, fourth sentence) of one year has       expired.         Subsection 3. The Supreme Court decides how an application       for leave pursuant to subsection 1 or 2 must be processed       and whether to depart from the general rules during the new       examination of the case.       ... ."       In his application the applicant maintained that the decisions taken by the lower courts were based on an incorrect interpretation of the law. Furthermore, he complained that the High Court had not taken into consideration the arguments he had presented to it. In addition, he argued, the case concerned matters of principle. No allegations concerning the competence or composition of the Bailiff's Court were made. Nor did he raise any questions as to the impartiality of the lower courts. By decision of 25 April 1994 the Supreme Court decided to grant the applicant permission to have his case tried before the Supreme Court referring to section 399 subsection 2 of the Administration of Justice Act. The applicant was requested to lodge his appeal within four weeks.         On 11 May 1994 the applicant appealed to the Supreme Court, adding new arguments as to the interpretation of the law. The plaintiff submitted its arguments on 10 June 1994 and the applicant submitted his final statements in reply on 30 June 1994. In neither of his statements to the Supreme Court did the applicant raise any questions as to the competence or composition of the Bailiff's Court or the impartiality of the lower courts or the Supreme Court. The Supreme Court upheld the High Court's decision on 16 November 1994. The Court's decision reads as follows:   (Translation)         "With reference to the reasoning of the High Court and as       the arguments presented to the Supreme Court make no       difference as to the result, the Supreme Court agrees that       the disputed parking is covered by section 1 of the Parking       Ordinance for Tårnby Police District of 7 June 1982. [The       applicant's] claim must therefore be rejected ...".   B.     Relevant domestic law and practice         Enforcement proceedings belong to the activities of the city courts, cf. section 14 subsection 1 of the Administration of Justice Act. The city courts are classified as ordinary courts of law, cf. section 1 subsection 1 of the Act. The Bailiff's Court is competent to examine the debtor's objections, whether they concern issues of fact or of law and evidence may also be produced before the Bailiff's Court concerning both the existence of the claim and its amount. However, the Bailiff's Court may refuse the production of evidence which should be given during ordinary legal proceedings owing to its volume or nature or for other reasons, cf. section 501 subsection 4 of the Act. The legal effect of such decision is that the execution or enforcement will be refused, and the plaintiff will then have to have the existence and amount of the claim established in ordinary court proceedings.         The proceedings in the Bailiff's Court are usually oral, thus, the debtor has a right to be present, cf. sections 494 and 495 of the Administration of Justice Act. By way of contrast, on appeal to the High Court or the Supreme Court the proceedings are in writing, cf. section 587 subsection 1 referring inter alia to section 398. However, if the nature of the case so requires the appeal courts may decide to hold oral hearings, cf. section 587 subsection 6. Such a decision is usually dependent on a request from one or both of the parties.       The Bailiff's Court is presided over by a judge or, as in the present case, by a deputy judge (dommerfuldmægtig). The deputy judges are afforded independence by section 64 of the Constitution in so far as they must obey only the law. However, the constitutional safeguards concerning irremovability of judges do not apply to deputy judges.   COMPLAINTS         The applicant complains, under Article 6 of the Convention, that in the proceedings concerning the parking fee he was not afforded a fair trial by an impartial tribunal.   THE LAW         The applicant claims that in the proceedings concerning the parking fee he did not have a fair trial before an impartial tribunal. He invokes in this respect Article 6 (Art. 6) of the Convention which, in so far as relevant, reads as follows:         "In the determination of his civil rights and obligations       or of any criminal charge against him, everyone is entitled       to a fair and public hearing ... by an independent and       impartial tribunal ... ."         The Commission recalls that the proceedings concerned the enforcement of the obligation to pay a parking fee. The question may therefore arise whether Article 6 (Art. 6) applies. The Commission finds, however, that it can leave this question open and proceed on the assumption that Article 6 (Art. 6) applies.         In support of his allegations under this provision the applicant submits that the Bailiff's Court cannot be considered an "ordinary court" and the deputy judge not a "real judge". Furthermore, he submits that since he had no possibility of being present in the High Court or in the Supreme Court and, referring also to Articles 51 and 60 of the Convention, since the latter courts did not provide any independent grounds for their decisions, he did not have a fair trial by an impartial tribunal.         Before entering into these aspects of the application the Commission recalls that Article 26 (Art. 26) of the Convention provides that the Commission may deal with the matter only after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.         As far as the exhaustion of domestic remedies is concerned the Commission recalls that the mere fact that an applicant has submitted his or her case to the various competent courts does not of itself constitute compliance with this rule. It is also required that the substance of any complaint made before the Commission should have been raised during the proceedings concerned. In this respect the Commission refers to its established case-law (see e.g. Dec. 6.3.84, D.R. 37, p. 113).       In the present case the applicant did not raise, either in form or in substance, in the proceedings before the domestic courts the complaints which he now makes before the Commission related to the proceedings in the Bailiff's Court or this court as such, nor did he raise at any moment the issue of the impartiality in respect of any of the domestic courts. Moreover, an examination of the case as it has been submitted does not disclose the existence of any special circumstances which might have absolved the applicant, according to the generally recognised rules of international law, from raising these complaints in the proceedings referred to.         It follows that the applicant has not complied with the condition as to the exhaustion of domestic remedies and this part of the application must be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.         As regards the other complaints made by the applicant the Commission recalls that in the present case, the judgment of the High Court was given on 19 April 1993 and the applicant's request for leave to appeal to the Supreme Court was rejected by the Ministry of Justice on 21 October 1993. The applicant then submitted a petition to the Supreme Court for leave to present his case to the Supreme Court pursuant to section 399 of the Administration of Justice Act. On 25 April 1994 the Supreme Court decided to grant the applicant such permission but by decision of 16 November 1994 the Supreme Court upheld the High Court's decision of 19 April 1993.         The Commission recalls that an application for retrial or similar extraordinary remedies, such as a petition submitted under section 399 of the Administration of Justice Act, cannot, as a general rule, be taken into consideration in the application of Article 26 (Art. 26) of the Convention (cf. e.g. No. 10326/83, Dec. 6.10.83, D.R. 35, p. 218 with further references and No. 12858/87, Dec. 3.5.88, unpublished). Nor does Article 6 (Art. 6) normally apply to proceedings where questions of granting a retrial or re-opening a case are determined (cf. e.g. Nos. 13601/88 and 13602/88, Dec. 6.7.89, D.R. 62, p. 284). In the present case, however, the Commission finds it desirable to leave these issues open as the remainder of the application is in any event inadmissible for the following reasons.   a)     The applicant alleges that he did not have an opportunity to be present when the High Court and the Supreme Court determined his appeal.         The Commission recalls that Article 6 para. 1 (Art. 6-1) guarantees the right to a public hearing, unless the conditions for exceptions in the second sentence of that paragraph are satisfied. The public character of court hearings constitutes a fundamental principle enshrined in paragraph 1 of Article 6 (Art. 6-1). However, neither the letter nor the spirit of this provision prevents a person from waiving of his or her own free will, either expressly or tacitly, the entitlement to have the case heard in public. A waiver must be in an unequivocal manner and must not run counter to any important interests (see e.g. Eur. Court HR, Håkansson and Sturesson v. Sweden judgment of 21 February 1990, Series A no. 171-A, p. 20, para. 66).         No express waiver was made in the present case. The question is whether there was a tacit one. Section 587 subsection 6 of the Administration of Justice Act makes express provision for an oral   hearing if the nature of the case so requires. However, the Commission observes that the applicant did not request an oral hearing at any stage during the appeal proceedings. He may be considered thereby unequivocally to have waived his right to a public hearing before the appellate courts.         In addition, the Commission recalls that, provided that there has been a public hearing at first instance, the absence of "public hearings" before a court of second or third instance may be justified by the special features of the proceedings at issue. Thus, leave-to-appeal proceedings and proceedings involving only questions of law, as opposed to questions of fact, may comply with the requirements of Article 6 (Art. 6), although the appellant was not given an opportunity of being heard in person by the appeal or cassation court (see e.g. Eur. Court HR, Jan-Åke Andersson v. Sweden judgment of 29 October 1991, Series A no. 212-B, p. 45, para. 27).         In the present case the Commission considers that the applicant's appeals to the appeal courts raised only questions of law, i.e. the interpretation of the relevant provision of the Parking Ordinance, which could be resolved adequately on the basis of the case-file. It does not appear that the case involved any questions of public interest which could have made a public hearing necessary. Considering also the amount with which the domestic proceedings were concerned, the appeal courts could, as a matter of fair trial, properly decide to examine the appeals without the applicant having a right to be present (see e.g. the Jan-Åke Andersson v. Sweden judgment op. cit., p. 46, para. 29).         In these circumstances the Commission finds that the applicant's absence in the appellate courts does not disclose any appearance of a violation of the Convention.   b)     Finally, the applicant complains that the High Court and the Supreme Court did not give any independent reasons for their decisions.         The Commission recalls that although the national courts enjoy considerable discretion as to the content and structure of their judgments, they must indicate with sufficient clarity the grounds on which they based their decision (cf. Eur. Court HR, Hadjianastassiou v. Greece judgment of 16 December 1992, Series A no. 252, p. 16, para. 33). However, they need not give a detailed answer to every argument (cf. Eur. Court HR, Van de Hurk v. the Netherlands judgment of 19 April 1994, Series A no. 288, p. 20, para. 61).         The extent to which this duty to give reasons applies may vary according to the nature of the decision. Moreover, it is necessary to take into account, inter alia, the diversity of the submissions that a litigant may bring before the courts and the differences existing in the Contracting States with regard to statutory provisions, customary rules, legal opinion and the presentation and drafting of judgments. That is why the question whether a court has failed to fulfil the obligation to state reasons, deriving from Article 6 (Art. 6) of the Convention, can be determined only in the light of the circumstances of each case (cf. Eur. Court HR, Ruiz Torija v. Spain judgment of 9 December 1994, Series A no. 303-B, p. 30, para. 27).         In the present case the Commission recalls that it follows from the facts as submitted by the applicant that the High Court as well as the Supreme Court addressed the submissions by the applicant. In part   the reasoning in the High Court's and the Supreme Court's decisions was made by referring to the decision of the previous court. By doing so the appeal courts must be considered as having accepted respectively the Bailiff's Court's and the High Court's reasoning (cf. No. 24949/94, Dec. 3.12.96, D.R. 87-A, p. 68). It does not make any difference in this respect that the Bailiff's Court's reasoning referred to the plaintiff's submissions as it was sufficiently clear on which points of law and fact the Bailiff's Court based its decision. In these circumstances there is no indication that the proceedings were unfair or in any way contrary to Article 6 para. 1 (Art. 6-1) of the Convention or other Articles of the Convention.         It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.         For these reasons, the Commission, unanimously,         DECLARES THE APPLICATION INADMISSIBLE.        M.-T. SCHOEPFER                               J.-C. GEUS       Secretary                                   President to the Second Chamber                       of the Second Chamber