Academic journal article Contemporary Readings in Law and Social Justice

Is the Strasbourg Court Really Accountable towards Its Ends?

Academic journal article Contemporary Readings in Law and Social Justice

Is the Strasbourg Court Really Accountable towards Its Ends?

Article excerpt

1.Introduction

In the following pages, we will try to present one specific and concrete case judged by a Romanian court of justice, related to a road-traffic fine, which will show without any doubt that, despite the clear violations of the applicable law by a national court of law, the Court rejected an application based on a general assumption that the conditions set under articles 34 and 35 were not met.

The aim of this paper is to highlight the fact that the actual mechanisms set by the Convention empty of content the principles established by the fathers of the Convention, who aimed, back in 1950 at protecting individuals against all possible abuses by national courts of law.

Before starting the presentation of the facts and procedures such as they really occurred (Part I) and the appreciations that can be made (Part II), one must acknowledge the fact that the author is linked with this case and the scope of drafting this paper is intended to solely have a legal approach, although it may appear also as a pamphlet.

2.The Facts

In April 2013, a Romanian driver was pulled over by the road police under the pretext of exceeding the speed limit and was sanctioned with penalty points and a fine for the presumed fact. However, the ticket was drafted on an outdated form and did not respect the minimum requirements set by the applicable law with regard to the detection of alleged speeding excesses using specific and homologated technical means.

Upon his request to be presented with a photo or video proof of the alleged excess, as well as to be informed if the radar equipment was duly inspected, these information were not communicated to the driver, whom was forced to sign for the acknowledgment of the ticket, despite his right to be given those information. The only mention made by the police agent in the ticket was the serial number of the radar equipment ROM - 196300107, without mentioning the number plates of the Police vehicle on which it was installed, nor the validity of the metrological verification of that equipment, although these details were expressly requested by the law. Moreover, the agent refused to communicate if the radar's operating conditions were respected, in accordance with the applicable rules of Legal Metrology.

Within the legal term of 15 days after the completion of the ticket, a lawsuit was filed against the ticket, the affected driver requesting the proof of validity of the radar's homologation, alongside other requests related to the legal competence of the radar operator to draft such a document. In front of the court, police authorities claimed that the alleged speed excess was recorded with a radar bearing the serial number ROM - 106300318 and presented the proof of that respective radar equipment metrological verification.

Consequently, the court of first instance found that there were differences between the serial number of the radar equipment mentioned in the fine and allegedly used to record the speed excess and the serial number of the radar in the homologation documents. Given the fact that the ticked did not contain any other details allowing to link the allegedly homologated radar equipment to the Police vehicle allegedly used by the agents that drafted the ticket, i.e. the vehicle's number plates, the first instance Court considered that it could not be proved that the radar device used to detect the alleged offense was duly homologated in accordance with the legal provisions and decided to cancel the ticket and the imposed fine, as the metrological proof of homologation contained a different serial number than the one stipulated in the ticket and the number plate of the Police vehicle, which was not at all mentioned in the fine. This decision of the Court was given in November 2013, seven months after the ticket was drafted and the parties received a copy of the judgment on December 11.

Although the legal term for the police authorities to file an appeal was of 30 days starting with the communication moment, the appeal was filed on January 13, over the legal limit, which established that an appeal could have been filed on January 10 at the latest. …

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