EHRM, 14-02-2012, nr. 7094/06

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:

No further appeal lay against this decision.

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:

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:

The Government denied that there had been any such violation.

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:

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.

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:

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.

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:

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 Governments 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.

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:

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.

Article 41 of the Convention provides:

The applicant claimed compensation of pecuniary and non-pecuniary damage and costs and expenses.