Krumpholz v Austria  ECHR 341 (18 March 2010)
In Krumpholz v Austria, the European Court of Human Rights held that deeming the owner of a vehicle to have committed a traffic offence (by virtue of their ownership of the vehicle) breaches the European Convention right to a fair hearing and presumption of innocence.
In February 2003, the applicant’s car was recorded by a radar speed detector travelling at a speed of 181 km in a 130 km zone. The district authority wrote to the applicant, ordering him to disclose the name and address of the driver of the car, but the applicant did not reply. The district authority then issued a penalty notice, ordering the applicant to pay a fine for speeding, and for failing to disclose the driver’s identity.
The applicant objected, saying that he had not been driving the car and was not in the country at the time. He refused to disclose the driver’s identity, as the car had been used regularly by a number of people. In dismissing the applicant’s objection, the authority noted that the applicant had refused to disclose who had been driving his car at the time of the offence and concluded that he had been the driver.
The applicant appealed, maintaining that the obligation to disclose the identity of the driver and the inference drawn that he was the driver were incompatible with art 6 of the European Convention of Human Rights, which relevantly states:
- In the determination of ...any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...
- Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
The applicant reiterated that he had not been driving his car and that he had not even been in Austria at the relevant time. He further asserted that his car had been used regularly by a number of persons but that he had not kept any records and was therefore not in a position to provide the required information. However, the appeal was dismissed, as:
the obligation on the accused in criminal proceedings to cooperate means that he is not merely responsible for contesting the specific evidence against him, without submitting equally specific statements in reply and adducing the relevant evidence … merely asserting that he was not driving the vehicle registered in his name at the scene of the offence and at the material time runs counter to the appellant's obligation to contribute to the establishment of the relevant facts.
Before the European Court of Human Rights, the applicant argued that the finding of guilt based on his refusal to disclose the identity of the driver violated his right to silence on the one hand and the presumption of innocence on the other. In addition, he asserted that the obligation to disclose the identity of the driver of the vehicle in itself violated the right to silence.
Austria submitted that the applicant had not been convicted of failure to disclose the identity of the driver, but convicted of the underlying traffic offence on the basis of evidence which had been freely evaluated by the authority. Referring to an earlier decision of the Court (Murray v UK 18731/91  ECHR 3), the Government stressed that the right to silence was not absolute and that it did not preclude the drawing of inferences from the accused's silence where, on the basis of the evidence obtained, the situation clearly called for an explanation.
The Court concluded that (para 32):
… the question of a possible violation has to be determined in the light of all the circumstances of the case, having particular regard to the situations where inferences may be drawn, the weight attached to them by the national courts in their assessment of the evidence before them and the degree of compulsion inherent in the situation.
The Court distinguished the Murray case on the basis that the earlier case concerned the application of a law which allowed the drawing of inferences from the accused's silence, where the prosecution had established a case against him which clearly called for an explanation.
However, in this case, the decisions were merely based on evidence of the speed recording of the car (and a policeman's statement that this recording had been duly made). There was no evidence giving any indication as to the identity of the driver, and the authority had a submission before it claiming that the applicant had not been driving the car, had not even been in Austria at the time and could not provide the name and address of the driver. The Court could not find that ‘in such a situation the only common-sense conclusion was that the applicant himself had been the driver’ (para 40). The Court concluded (para 42):
In sum, the drawing of inferences in a situation which did not clearly call for an explanation from the applicant and without sufficient procedural safeguards being applied violated the applicant's right to silence and the presumption of innocence.
The Court declared that there had been a violation of arts 6(1) and 6(2) of the Convention.
Relevance to the Victorian Charter
Last year, Victorian government agencies issued 2,385,175 traffic infringements. Many of the offences under the Road Safety Act 1986 (Vic) are categorized as ‘operator onus’ offences, including exceeding speed limits, disobeying traffic signals and traveling in designated lanes detected by road safety cameras. If an owner or operator fails to nominate another driver, then they become liable and are ‘deemed’ to have committed the offence (see See Road Safety Act 1986 (Vic) pt 6AA).
This judgment questions the validity of traffic offence provisions which deem the owner of a vehicle to have committed an offence.
In earlier decisions, the European Court of Human Rights has held that the obligation for vehicle owners to disclose the driver at the time when a traffic offence was committed did not violate the right to silence and the privilege against self-incrimination. In those earlier cases, the Court noted that direct compulsion was brought to bear on the respective applicants, but that this was an acceptable part of the regulatory regime in which car owners and drivers subjected themselves to certain responsibilities and obligations. The Court also had regard to the nature of the penalties, the limited nature of the inquiry permitted, and the procedural safeguards that provided that the registered keeper of the car was not left without any defence.
The question that arises, and is dealt with in this case, is the question of the procedural safeguards. Arguably, the procedural safeguards in Victoria are similar to those in Austria (as described in this judgement), in that applicants are required to make specific submissions to show that they were not driving the vehicle (supported by evidence) and there is no requirement for the matter to be heard unless the applicant requests a hearing. The European Court held that this process contains insufficient procedural safeguards to protect the substantive Convention rights, mirrored in ss 25(1) and 25(2)(k) of the Charter, and allowing similar criticisms to be levelled at the Victorian infringements system.
The decision is available at http://www.bailii.org/eu/cases/ECHR/2010/341.html.
James Farrell is Manager of the PILCH Homeless Persons' Legal Clinic, convenor of the Federation of Community Legal Centres’ Infringements Working Group and a community representative on the Infringements Standing Advisory Committee.