CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 1 juillet 2004

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Ress , President ,   Mr   L. Caflisch ,   Mr   R. Türmen ,   Mrs   M. Tsatsa-Nikolovska ,   Mrs   H.S. Greve ,   Mr   K. Traja ,   Mr   L. Garlicki, judges , and Mr M. Villiger , Deputy Section Registrar , Having regard to the above application lodged on 22 August 1998, Having deliberated, decides as follows: THE FACTS The applicant, Mr Leszek Siwak, is a Polish national, who was born in 1954 and lives in Przemyśl. The responded Government were represented by their Agent,   Mr K. Drzewicki, of the Ministry of Foreign Affairs and, subsequently, Ms Sylwia Jaczewska, Acting Government Agent. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. The applicant owns a flower shop in Przemyśl. On 7 March 1997 the applicant parked his car in an unauthorized place. He was stopped by the municipal police officers while he was transporting flowers and more than 200 kilos of soil to his shop. The police officers proposed the applicant to pay PLN 50 as a fine for parking in an unauthorized place. The applicant refused to pay the fine and, consequently, in accordance with the law then in force, the municipal police officers lodged a motion for punishment of the applicant by the Petty Offences Board ( Kolegium do Spraw Wykroczeń ). On 19 March 1997 the municipal police requested the Petty Offences Board to punish the applicant for a petty offence of illegal parking.   The hearings listed for 10 October 1997 and for 29 October 1997 by the Przemyśl Petty Offences Board were adjourned due to the absence of the municipal police officers. At the hearing held on 11 December 1997 the Petty Offences Board heard a municipal police officer in the presence of the applicant. By a decision of 11 December 1997 the Petty Offences Board imposed a fine of PLN 120 on the applicant for illegal parking of his car. The applicant appealed against this decision, claiming that he could not transport the commodity in a different manner, especially the flowers, without exposing them to damage during the winter. He alleged that the municipality did not provide any other possibility of parking which could allow him to run his business.   On 16 December 1997 the applicant’s appeal and the case-fine was transmitted to the Przemyśl District Court for examination. On 8 January 1998 the president of the court listed a hearing for 27   March 1998. On 13 February 1998 the applicant was duly summoned to the hearing. As transpires from an acknowledgment of receipt, on 14 February 1998 the applicant’s apartment was closed. Thus, the postman left him a written notice on the door of his apartment to collect the summons at the post office. The summons was not collected by the applicant by 23   February   1998 and consequently, it was returned to the court with a note that it was not collected by the applicant within the prescribed time-limit of seven days. By a judgment in default of 27 March 1998 the Przemyśl District Court upheld the contested decision. Neither the applicant nor a prosecutor was present at the hearing. The court noted in the records of the case that the applicant was duly summoned to the hearing.    On 8 April 1998 the applicant had been served with the judgment. He confirmed this fact with his own signature. In a letter of 10 April 1998 he requested to be served with the written grounds of the judgment. He also contended that the proceedings were not fair as he had not been informed of or summoned to the hearing on 27   March 1998 and therefore his arguments could not have been adequately presented to the court. He asked the court for the explanation and redress of this procedural shortcoming. By a letter of the Przemyśl District Court of 8 May 1998, the applicant was informed that the judgment was final and no appeal lay against it.        In a letter of 15 May 1998 to the President of the Przemyśl District Court, the applicant explained that on 8 April 1998 he had been served with the judgment of 27 March 1998. He had also been informed that he could request the written grounds within seven days time-limit. He had done so in his letter of 10 April 1998.      On 4 June 1998 the court decided that the applicant should pay the costs of the proceedings in amount of PLN 141,40. On 15 June 1998 the applicant appealed against this decision. On 7 July 1998 the Przemyśl District Court decided to uphold the contested decision.   By a letter of 20 June 1998 the President of the District Court informed the applicant that he could not appeal against the contested judgment as it had already become final, but that he could have the written grounds prepared. On 12 June 1998 the applicant lodged a new complaint with the Przemyśl Regional Court that he was not summoned to the hearing and he had not presented his arguments. He also alleged that he had repeatedly requested the written grounds of the judgment and the explanation in respect of the summons to the hearing, but all his requests remained unanswered.    Following the applicant’s further request of 13 July 1998, the court sent him the written grounds of the judgment on 31 July 1998. The court emphasised therein, inter alia , that the applicant could have used a parking place located 6 meters away from the place where he had illegally parked his car.   B.     Relevant domestic law At the material time the rules concerning a police order to pay a fine were defined in the Ordinance of the Ministry of Interior Affairs of 5   March   1991 on imposition, payment and execution of fines imposed by an order of an appropriate organ ( rozporządzenie Ministra Spraw Wewnętrznych w sprawie nakładania, uiszczania i ściągania grzywien w postępowaniu mandatowym- Dziennik Ustaw, or Journal of Laws, of 1998, No 94, Item 601 ). Pursuant to § 4 (2) of the Ordinance in the proceedings concerning imposition of a fine, an appropriate organ may order a fine payable immediately in cash only if the amount of this fine does not exceed PLN 100. Pursuant to § 3 (2) of the Ordinance, imposition of a fine in such proceedings is possible only if a person punished by a fine accepts it. In case of refusal, the police or municipal police are obliged to submit a motion for punishment of such a person to the Petty Offences Board. Under Article 455 in connection with Article 418 of the Code of Criminal Procedure of 1969 (CCP), applicable to the judicial proceedings concerning minor offences in which a decision was given by the Board of Petty Offences, the provisions concerning the criminal summary proceedings shall be applicable. At the material time the rules concerning service of summons in criminal proceedings were defined in Article 118 of the CCP. Pursuant to Article 118 § 1 CCP, if a personal summoning of an addressee is impossible, a summons sent by the post should be left at the post office located the nearest to the addressee. According to Article 118 § 2 CCP, the addressee should be informed about the summons left at the post office by a written notice left on the door of his/her home. The notice should inform the addressee that the summons should be taken up within seven days.   According to well-established jurisprudence of the Polish Supreme Court, a party in criminal proceedings shall not be allowed to claim that it was not summoned by a court while being informed about a summons and not collecting it from an indicated place (see a decision of the Polish Supreme Court of 20 October 1998, III KZP 182/98, published in OSNKW No. 11-12/1998, Item 52). Article 425 of the Code of Criminal Procedure of 1969, applicable to the summary proceedings, provided that if a suspect, who was served with the summons to the hearing, did not attend the hearing, the court could hold the hearing in the absence of the suspect and a judgment in default could be given. COMPLAINTS The applicant complains under Article 6 § 1 of the Convention that the proceedings were not fair in that he was not informed of or summoned to the hearing on 27 March 1998 and was thereby prevented from participating in the hearing. His defence rights were thus breached. He also complains that the Przemyśl District Court issued a judgment of default without confirmation concerning his summons.    THE LAW The applicant complains under Article 6 § 1 of the Convention that the proceedings were not fair in that he was not informed and summoned to the hearing on 27 March 1998 and was thereby prevented from participating in the hearing. He also complains that the Przemyśl District Court issued a judgment of default without confirmation concerning his summons. 1. Applicability of Article 6 § 1 Article 6 § 1, in so far as relevant, reads: “In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal...” a)     Submissions of the parties The parties dispute the applicability of Article 6 to the complaints. The applicant contends that the charge against him can be considered “criminal” for the purpose of Article 6, whereas the Government consider that it has clearly an administrative character since its punishment is aimed to protect public order on the roads. The Government maintain that in the case at issue the applicant was “charged” by the municipal police officers with a petty offence of illegal parking punishable under Article 92 § 1 of the Code of Petty Offences (CPO). The maximum penalty which the municipal police officers could impose on the applicant to be payable immediately in cash was PLN 100 Due to the applicant’s refusal to accept a fine of PLN 50 imposed by the municipal police, the Board of Petty Offences was allowed to impose a higher fine on him.   The Government are of the opinion that the sanction concerned, due to its very slender severity, cannot be considered as “criminal” in nature. Furthermore, a petty offence of illegal parking has an administrative character since the purpose of the penalty is to protect public order on the roads. In the Government’s view, Article 6 under its criminal head is not applicable to the applicant’s case. Consequently, the applicant’s complaint is incompatible with the provisions of the Convention and should, as such, be declared inadmissible under Article 35 § 3 of the Convention. b)     The Court’s assessment The Court must examine whether the proceedings concerned were of a criminal nature. The Court recalls that in order to determine whether an offence qualifies as “criminal” for the purposes of the Convention, the first matter to be ascertained is whether or not the text defining the offence belongs, in the legal system of the respondent State, to the criminal law; next, the nature of the offence and, finally, the nature and degree of severity of the penalty that the person concerned risked incurring must be examined, having regard to the object and purpose of Article 6, to the ordinary meaning of the terms of that Article and to the laws of the Contracting States (see Garyfallou AEBE v. Greece , judgment of 24 September 1997, Reports of Judgments and Decisions 1997-V, p. 1830, § 32; Kadubec v. Slovakia , judgment of 2   September 1998, Reports of Judgments and Decisions 1998-VI, p. 2529, § 50). It is in the light of these criteria that it must be considered whether the penalties in question attracted the guarantees of Article 6 of the Convention.   As to the first of these criteria, the Court considers that the Code of Petty Offences should clearly be regarded as belonging to criminal law. Under Article 455 of the Code of Criminal Procedure of 1969 applicable to the judicial proceedings concerning minor offences in which the decision was given by the Board of Petty Offences, the provisions of the Code of Criminal Procedure concerning the criminal summary proceedings shall be applicable. The Court finds that the domestic law does not classify as “criminal” the minor offence for which the applicant had been fined. However, the indications furnished by the domestic law of the respondent State have only a relative value (see Öztürk v. Germany , judgment of 21   February   1984, Series   A   no. 73, p.   19, §   52). It is therefore necessary to examine the minor offence in the light of the second and third criteria mentioned above. In this respect, the Court recalls that these criteria are alternative and not cumulative: for Article   6 to apply by virtue of the words “criminal charge”, it suffices that the offence in question should by its nature be “criminal” from the point of view of the Convention, or should have made the person concerned liable to a sanction which, by its nature and degree of severity, belongs in general to the “criminal” sphere (see, inter alia , Lutz v. Germany , judgment of 25   August   1987, Series   A no.   123, p.   23, §   55). This does not exclude that a cumulative approach may be adopted where the separate analysis of each criterion does not make it possible to reach a clear conclusion as to the existence of a “criminal charge” (see, among other authorities, Garyfallou   AEBE , cited above, p.   1830, §   33; and Bendenoun v. France , judgment of 24   February   1994, Series   A no.   284, p.   20, §   47). As regards the nature of the offence committed by the applicant, the Court recalls that he was convicted under Article 92 § 1 of the Code of Petty Offences. That provision regulates minor offences against safety and established order on the roads. Accordingly, the legal rule infringed by the applicant is directed towards all citizens and not towards a given group possessing a special status. The general character of the legal rule in question is further confirmed by section 1 of the Code of Petty Offences which refers to the fact that all citizens must ensure respect for legal rules and the rights of other citizens and also which defines a minor offence as a wrongful act which interferes with or causes danger to the public interest punishable under special legal rules (see Öztürk , cited above, p. 20, § 53). Furthermore, the applicant was sentenced by the Petty Offences Board and by the Przemyśl District Court to a fine and ordered to pay the costs of the proceedings later on.   The fine imposed on the applicant was intended as a punishment to deter re-offending. It has a punitive character, which is the customary distinguishing feature of criminal penalties (see Öztürk , cited above, p.   20, §   53; and A.P., M.P. and T.P. v.   Switzerland , judgment of 29   August   1997, Reports of Judgments and Decisions 1997-V, p.   1488, §   41). In sum, the general character of the legal provision infringed by the applicant together with the deterrent and punitive purpose of the penalty imposed on him, suffice to show that the offence in question was, in terms of Article 6 of the Convention, criminal in nature. Accordingly, there is no need to examine it also in the light of the third criterion stated above. The relative lack of seriousness of the penalty at stake can not deprive an offence of its inherently criminal character. Consequently, the Court finds that Article 6 is applicable in the instant case. 2. Compliance with Article 6 § 1 a)     Submissions of the parties The applicant’s observations did not contain any information relevant to the analysis of the issue. The Government emphasise that the Polish law applicable at the material time provided full guarantees of a fair trial in the judicial proceedings initiated upon an appeal against a decision of the Board of Petty Offences. In the proceedings conducted upon the applicant’s appeal against the decision of the Board of Petty Offences of 11 December 1997, all guarantees of a right to a fair trial were respected by the Przemyśl District Court. The Government consider that the applicant was duly summoned to the hearing held before the court on 27 March 1998. They argue that a summons was delivered to the applicant in accordance with provision of Article 118 CCP applicable at the material time, and, since he did not collect the summons from the post office within the statutory time limit of 7   days, it was returned to the court. The court considered that the summons was delivered properly and held the hearing in the absence of the applicant. Since neither the applicant nor a prosecutor attended the hearing, the court issued a judgment in default, in accordance with the relevant provisions of the CCP. In accordance with the request of the Court, the Government submit a copy of the summons and a copy of acknowledgment of receipt as a proof that the applicant was duly summoned to the hearing.   b)     The Court’s assessment The Court considers, in the light of all the circumstances of the case and the relevant documents submitted by the Government, that the applicant was duly summoned to the hearing held before the Przemyśl District Court on 27 March 1998. The Court observes that the applicant, by not collecting the summons duly delivered by the court, waived his right to be present before the court and to defend himself in person. Having regard to the above, the Court finds that in this case there is no appearance of a violation of the applicant’s right to have a fair hearing as guaranteed by Article 6 § 1. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article   35 §§   3 and   4 of the Convention. For these reasons, the Court unanimously Declares the application inadmissible.   Mark Villiger   Georg Ress Deputy Registrar   President