The owner of an illegally parked vehicle must benefit from the presumption of innocence  - jinterwas - CC BY 2.0
Photo: jinterwas - CC BY 2.0

- By Bénédicte De Beys

The owner of an illegally parked vehicle must benefit from the presumption of innocence

In accordance with the rights of defence, the presumption of attributability for the offense with regard to license plate holders must be refutable.

The Constitutional Court's decision of 9 February 2017 confirms that in the event of an offense particularly with regard to parking, vehicles owners must be preserved from any administrative sanctions if they prove not to have been the driver of the vehicle at the time of the offense. Indeed, the principle of the presumption of innocence guaranteed by Article 6, §2 of the European Convention of Human Rights also applies to administrative sanctions.

The decision concerns what are called "mixed" offenses, in other words those for which the sanctioned conduct is defined by the Federal government but for which the punishment is established by an ordinance or municipal code. This is the case of offences falling under the provisions relating to stopping and parking as well as signalling C3 and F103 (pursuant to Article 3, 3° of the Act of 24 June 2013 relating to municipal administrative penalties which authorises town councils to enact administrative sanctions in this regard).

Indeed, the question sent before the Court for a preliminary ruling, pinpointed the discrimination between:

  • on the one hand, vehicle owners sanctioned pursuant to the Act of 24 June 2013, whose article 33 specifies that, for the aforementioned mixed offenses, the administrative fine is, in case of the absence of the driver, charged to the holder of the vehicle's license plate, without the possibility for the latter to subsequently rebut the presumption established against him by proving that he was not the driver at the time of the facts;

  • and on the other hand, vehicle owners sanctioned under legislation relating to the road traffic police whose articles 67bis and 67ter organise a refutable presumption of guilt, which can be reversed by any means available under the law.

The Court finds that the infringement of the presumption of innocence of the holder of the license plates is disproportionate and does not achieve the objective of Article 33 of the Act of 24 June 2013 whose purpose is to sanction the true perpetrator.

However, rather than setting aside Article 33 of the Act of 24 June 2013, the Court suggests an interpretation in accordance with this article which must indeed be read in combination with Article 29 of the said Act, which allows the defendant to assert his grounds for defence to the municipal law enforcement officer.

This judgment is interesting in several respects because its extremely clear drafting not only recalls the principle of mixed offenses but especially the repressive nature of administrative fines justifying that these be imposed in accordance with Article 6 of the European Convention of Human Rights. Indeed, while it is possible that, if necessary, the guarantees of the right to a fair trial can be altered or eliminated, in the case of administrative fines, the infringement of this right must always be justified and proportionate.

Associated areas of specialisation: Public economics and finance


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