Preliminary objection rejected (validity of declaration);Violation of Art. 6-1;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings;Lack of jurisdiction (cancellation and refund of fine);Lack of jurisdiction (legislative amendment)

ORG Mrs. PERSON , who is a NORP citizen , lives in GPE and was a student there at the material time .

ORG In a report of DATE , the GPE police laid an information against her for having contravened the municipality ’s FAC by having taken part in a demonstration in the streets of the city on DATE for which permission had not been sought in advance . The march had been organised by the " Lausanne bouge " ( " GPE on the move " ) movement , which on DATE had distributed leaflets calling on people to join the demonstration , and CARDINAL people had taken part ; they were requesting that the municipality should provide an autonomous youth centre .

At a sitting held on DATE , the municipal ORG , in the applicant ’s absence , imposed on her a fine of MONEY ( CHF ) .

ORG Mrs. PERSON lodged an application under sections CARDINAL et seq . of ORG of DATE to have that decision set aside , and ORG held an initial hearing on DATE . After reading out the police report , it heard the defendant and then the policemen who had laid the information . In view of the applicant ’s explanations , the ORG adjourned its investigation of the case to a later date in order to be able to hear a witness . On DATE , it gave Mrs. PERSON a further hearing , and also heard evidence from her former husband as a witness . He stated that at the material time he was with his ex - wife in a GPE café , where he had handed over to her the maintenance payment for their child .

ORG gave its decision on DATE " without the interested parties being present " . In the " As to the facts " part of its decision , it described the convening , the course and the consequences of the relevant demonstration ; it went on to list the allegations made by Mrs. PERSON , who inter alia challenged the legitimacy of the body giving judgment and denied that she had taken part in the demonstration ; thirdly , it mentioned the evidence given by the defendant ’s ex - husband ; and , lastly , it noted that the policemen had confirmed their report and categorically denied the applicant ’s claim that she had not taken part .

In the " As to the law " part of its decision ORG noted that its jurisdiction could not be disputed and it concluded that it had " satisfied itself in the course of its inquiries that the defendant [ had ] indeed participated in the demonstration on DATE " . Having regard to the fact , on the one hand , that Mrs. PERSON had not played an active role but , on the other hand , that this was not a first offence , ORG reduced the fine to CARDINAL ; it also ordered her to pay costs of QUANTITY .

The decision was notified to the applicant by registered letter on DATE .

ORG Mrs. PERSON applied to ORG of ORG to have that decision declared null and void . She claimed principally that in view of the requirements of LAW , ORG had no power to make a determination of the disputed offence ; and in any event , she asked the court to hear her former husband and to redetermine the facts fully . ORG dismissed the appeal on DATE , holding :

The applicant argued that the decision was not compatible with Art . CARDINAL ( article CARDINAL ) of LAW ( ORG ) , which enshrines the right to a hearing by an independent and impartial tribunal established by law , and that the reservations made when GPE acceded to the Convention did not allow an administrative authority , a fortiori where it was an agency of the executive that was judge in its own cause , to determine a criminal charge , the judicial review by ORG being moreover inadequate .

In a judgment of DATE , in the case of PERSON and Others , this court stated that by virtue of the reservations made by GPE , proceedings before an administrative authority relating to the determination of a criminal charge were not covered by the obligation to provide a public hearing and to pronounce judgment publicly ( see also PERSON . : PERSON , CARDINAL July/CARDINAL DATE ; ORG , DATE May/CARDINAL DATE ) .

As regards Art . CARDINAL para . CARDINAL ( article CARDINAL ) ORG , GPE made the following declaration ( ORG [ Compendium of Federal Law ] O.CARDINAL , p. CARDINAL ) : ‘ ORG considers that the guarantee of fair trial in Art . CARDINAL , paragraph CARDINAL ( article CARDINAL - CARDINAL ) , of the LAW , in the determination of ... any criminal charge against the person in question is intended solely to ensure ultimate control by the judiciary over the acts or decisions of the public authorities relating to ... the determination of such a charge.’

In its communication of CARDINAL DATE concerning ORG , ORG stated that where the decision taken by an administrative authority could be referred to a court not for a ruling on the merits but solely for review of its lawfulness ( pourvoi en nullité ) , the question arose whether that review procedure satisfied the requirements of Art . CARDINAL ( article CARDINAL ) of the Convention .

It answered this question in the affirmative , as Art . CARDINAL para . CARDINAL ( article CARDINAL ) was intended only to ensure ultimate control by the judiciary , and the judicial element of a fair trial seemed to be sufficiently ensured in NORP law as ORG had derived from the right to a hearing rules on the administration of justice which corresponded to those listed in Art . CARDINAL ( article CARDINAL ) of the LAW ( ORG [ ORG ] DATE I p. CARDINAL , Communication ) .

The fact that appeal proceedings are in written form without any oral argument or taking of evidence is not contrary to Art . CARDINAL ( article DATE ORG : PERSON , CARDINAL.CARDINAL.CARDINAL ) .

The Cassation Division therefore carries out the ultimate control by the judiciary required by LAW , subject to the reservations made by GPE , even if it can not hear witnesses .

ORG The applicant lodged a public - law appeal against this decision with ORG . In her submission , GPE ’s interpretative declaration in respect of the Convention ( see paragraph CARDINAL below ) did not mean that an administrative authority such as ORG was empowered to determine the merits of a criminal charge . Such a jurisdiction was conceivable only if judicial review was ultimately available . This was not so in the present case , however , as ORG of ORG and ORG had limited powers , which did not normally allow them to review questions of fact ( on which ORG findings were final ) , for example by examining witnesses . Furthermore , under LAW of ORG the municipality could delegate its powers to a senior police official , who was an agent of the executive ; that being so , ORG was acting as judge in its own cause .

ORG On DATE , ORG ( CARDINALst ORG ) delivered a judgment dismissing the appeal on the following grounds :

The guarantee of a fair trial provided for in LAW ( article DATE ) ORG [ ORG ] lays down inter alia that ‘ everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law ... ’ .

( a ) The sole issue raised by the appellant ’s complaint is whether LAW ) ORG precludes proceedings whereby the facts are established by a body such as ORG , which is not an independent tribunal . Contrary to that ORG statement in its ruling of CARDINAL DATE , the appellant did not claim , even by implication , that ORG was in this case an ( administrative ) body lacking impartiality . In any event , such a complaint was not formulated in terms sufficiently clear with regard to section CARDINAL(CARDINAL)(b ) OJ [ LAW ] .

( b ) The scope of LAW ( article DATE ) ORG must be examined in the light of GPE ’s interpretative declaration , according to which : ‘ ORG considers that the guarantee of fair trial in LAW ( article DATE ) of the LAW , ... is intended solely to ensure ultimate control by the judiciary over the acts or decisions of the public authorities ... ’ . ( LAW ( a ) of LAW of DATE approving the ORG , ORG [ ORG ] DATE , DATE . ) In its communication of CARDINAL DATE to ORG , ORG noted that this interpretative declaration was formulated precisely with a view to ‘ cases in which the decision taken by an administrative authority may be referred to a court not for a ruling on the merits but solely for review of its lawfulness ( pourvoi en nullité)’ , on the basis of the interpretation of LAW ( article DATE ) given by the President of ORG ( DATE I p. CARDINAL ) . ORG finds no grounds for departing from that interpretative declaration ( ORG [ Judgments of ORG ] CARDINAL Ia CARDINAL ) , even though its validity and its scope have been contested by academic writers ( PERSON , PERSON auslegende PERSON ORG , GPE thesis DATE , pp . CARDINAL - CARDINAL ) . Moreover , ORG has also acknowledged that LAW ( article DATE ) is complied with in so far as a decision of an administrative authority may be subject to ultimate control by the judiciary , since the guarantee of a fair trial must be assessed having regard to the entire procedure ( ORG CARDINAL Ia CARDINAL ; cf . PERSON , ‘ GPE devant les organes de la CEDH’ , in ORG [ Revue de droit suisse ] CARDINAL/CARDINAL II p. CARDINAL , and the decisions cited therein ; ORG , GPE par la Convention européenne des Droits de l’Homme , p. CARDINAL , no . CARDINAL ) .

The GPE legislature used the right conferred on cantons by LAW CC [ LAW ] to allow certain minor offences to be tried by the municipal authority ( section CARDINAL of LAW of DATE ; sections CARDINAL et seq . MDA [ LAW ] ) . According to section CARDINAL MDA , judicial review of such municipal decisions is effected by ORG , which may determine both whether the correct procedure has been followed ( in the case of a recours en nullité - section CARDINAL MDA ) and whether the law has been properly applied ( in the case of a recours en réforme - section CARDINAL MDA ) . It does not therefore have full competence to re - examine the facts . However , that is not necessary under LAW ( article DATE ) ORG provided that appeal lies to a judicial authority which not only reviews the correctness of the procedure - including ‘ whether there are serious doubts as to the facts ORG ( section CARDINAL ( e ) ) - but may also be called upon to consider complaints of ‘ incorrect application of the law’ and of ‘ misuse of discretion in the application of the law’ ( section DATE ) . ORG therefore enjoys a much more extensive power of review than ORG in a public - law appeal , where jurisdiction is restricted to ensuring that a decision is not arbitrary ( cf . PERSON , Die Artikel CARDINAL und CARDINAL ( article CARDINAL , article CARDINAL ) PERSON , insbesondere i m Hinblick auf das schweizerische PERSON , RDS CARDINAL/CARDINAL I , p. CARDINAL , nos . CARDINAL - CARDINAL ) , since the appeal which lies is not ‘ a mere cassation PERSON ( PERSON , op . cit . , pp . DATE , no . CARDINAL ) . Moreover , where ORG quashes a decision because there are serious doubts as to the facts found ( section CARDINAL(e ) ORG ) , it may request the municipal authority , to which it remits the case ( section CARDINAL MDA ) , to carry out additional investigative measures . That in itself is sufficient to show that the ultimate control by the judiciary of municipal decisions in GPE is in conformity with LAW ( article DATE ) ORG , as interpreted in accordance with the declaration made by GPE . The view advanced by PERSON , who appears to argue that ultimate judicial control should cover both the law and the facts ( PERSON Europaïschen Konvention zum Schutze der PERSON ( Art . CARDINAL und CARDINAL ) ( article CARDINAL , article CARDINAL ) in ihrer GPE auf das schweizerische GPE , GPE thesis DATE , pp . CARDINAL ) , is not justified in view of the meaning of ORG interpretative declaration , although it would be desirable for offences of the kind at issue to be tried by a criminal court .

Moreover , the appellant did not claim that the judicial review of the instant case by ORG was open to criticism regarding its examination of the lawfulness of ORG decision of DATE . " ( Judgments of ORG , vol . CARDINAL , GPE , pp . CARDINAL - CARDINAL )

ORG In the GPE of GPE , municipalities can delegate responsibility for prosecuting and punishing minor offences to CARDINAL or CARDINAL municipal councillors or , where the population is over CARDINAL , to a specialist civil servant or a senior police officer ( section CARDINAL of LAW of DATE - " the DATE Act " ) .

ORG In GPE ORG consists of a single municipal civil servant . He is a sworn official and as such " must discharge his duties in person , diligently , conscientiously and loyally " ( Regulation CARDINAL of ORG ) . He can withdraw from the case of his own accord or be challenged ( section CARDINAL of the DATE Act ) .

ORG can only impose fines ( section CARDINAL of the DATE Act ) , and these can not exceed MONEY for a first offence or QUANTITY for a subsequent offence . It is empowered to order the offender ( " dénoncé " ) to pay expenses ( sections CARDINAL and DATE ) but has no power to award damages or costs against him ( section CARDINAL ) .

ORG In DATE , ORG decided CARDINAL individual cases . Traffic offences - mainly parking offences - accounted for PERCENT of these .

ORG If ORG considers that the facts have been established and that the available information about the personal situation of the offender is sufficient , it may take its decision without summoning the person concerned to appear before it ( section CARDINAL of the DATE Act ) .

Where a hearing is held , the offender is entitled to consult the file beforehand ( section CARDINAL ) . He normally appears in person at the hearing but may send a representative if he is expressly exempted from attending in person ( section CARDINAL ) .

ORG The procedure for inquiring into the facts is laid down in LAW , which reads as follows :

" The municipal authority shall hear the offender and , where appropriate , the person who has laid the information against him .

Such parts of the police report as concern the offender shall be made known to him or to the person representing or assisting him .

If the facts are disputed , the municipal authority shall carry out the necessary verification , in particular by taking evidence from witnesses it has summoned or sends for or whom the offender brings before it ; it may visit the locus .

Where necessary , it shall call upon the services of an interpreter .

For the rest , the municipal authority shall reach its own conclusion as to the accuracy of the facts set out in the report . "

ORG decision is delivered immediately ; if convicted , the offender is informed of his right of appeal ( section CARDINAL ) , and the ORG ’s decision is subsequently notified to him in writing .

ORG A convicted offender may apply to have the conviction set aside ( opposition ) if , as in the instant case , he was not summoned to appear at a hearing or was tried in absentia ( section DATE ) . In such cases the original decision ceases to have validity ( section CARDINAL ) and ORG reopens the proceedings by summoning the person concerned to a hearing .

Criminal law in the GPE of GPE does not allow for an ordinary appeal ( appel ) against ORG decisions but does make provision for CARDINAL types of application to ORG of ORG , in addition to the possibility of applying to have the decision set aside .

The first type - of which Mrs. PERSON availed herself ( see paragraph CARDINAL above ) - is provided for in section CARDINAL of the DATE Act :

" An application for a declaration of nullity ( recours en nullité ) may be made on grounds of the following procedural irregularities :

( a ) where the municipal authority has made a determination of fact in respect of which it had no statutory competence by reason of territorial jurisdiction or the subject - matter ;

( b ) where process has not been properly served on the offender ;

( c ) where some other vital procedural rule has been disregarded in such a way as to affect the impugned decision ;

( d ) where the decision being challenged discloses omissions or inconsistencies such that ORG is unable to determine the ground of appeal ;

( e ) where there are serious doubts as to the facts found . "

In cases which come under paragraph ( a ) and in which prosecution of the offence is mandatory , the Cassation Division refers the case to the public prosecutor ’s office ( section CARDINAL paragraph ) ; it declares the impugned decision to be null and void without referring the case " where prosecution of the offence is not mandatory or is clearly time - barred " ( section CARDINAL paragraph ) . In the other eventualities it " shall remit the case to the municipal authority for a fresh decision " ( section CARDINAL ) .

Section CARDINAL provides for a second type of application , not made in the instant case , namely an appeal on points of law ( recours en réforme ) " on grounds of incorrect application of the law or of misuse of discretionary powers in the application of the law " . If it allows the appeal , " the Cassation Division shall substitute its own decision taken on the basis of the facts established at first instance , save for any manifest errors , which it shall rectify of its own motion " ( section CARDINAL ) .

ORG When such an application or appeal is made , ORG forwards it without delay to ORG together with the case file . The file must ( under section DATE ) contain : the police report(s ) ; a copy of the summons , together , if necessary , with the acknowledgement of receipt of it ; a copy of the decision ; the envelope containing the application or appeal , if it was sent by post ; possibly the other documents relating to the offence in question ; and a copy of the municipal regulations applied or a copy of the administrative decision which has not been complied with . ORG may enclose " determinations " on the applications .

ORG In DATE , ORG registered CARDINAL such applications and appeals against decisions of ORG . By DATE , it had rejected CARDINAL of them in limine , dismissed CARDINAL and allowed CARDINAL , remitting the case to ORG ; the other CARDINAL were still pending .

ORG A public - law appeal lies to ORG against judgments of ORG of ORG , and on such an appeal ORG power of review is restricted to ensuring that there has been no arbitrariness ( see paragraph CARDINAL above ) .

CARDINAL such appeals relating to decisions by ORG were heard in DATE ; ORG declared all of them inadmissible .

ORG On DATE , the Head of ORG - which has since become ORG - deposited the instrument of ratification of the LAW with the Secretary General of ORG ( pursuant to LAW , third sentence ) ( article CARDINAL - CARDINAL ) . The instrument reproduced , mutatis mutandis , the wording traditionally used by GPE in such cases :

" ORG , having seen and considered ORG DATE , ... which was approved by ORG on DATE , declares that the Convention aforesaid is ratified , with the following reservations and interpretative declarations ... " .

The reservations were made in respect of Articles CARDINAL and CARDINAL ( article CARDINAL , article CARDINAL ) - the first one was withdrawn in DATE - , while the declarations related to CARDINAL ( c ) and ( e ) of LAW article DATE , article DATE , article DATE ) .

ORG Only the declaration on the interpretation of LAW ( article LAW ) is at issue in the instant case ; it reads :

" ORG considers that the guarantee of fair trial in DATE , paragraph CARDINAL ( article CARDINAL - CARDINAL ) of the LAW , in the determination of civil rights and obligations or any criminal charge against the person in question is intended solely to ensure ultimate control by the judiciary over the acts or decisions of the public authorities relating to such rights or obligations or the determination of such a charge . "

ORG On DATE , ORG submitted to ORG a detailed report on ORG , DATE , vol . II , pp . DATE ) . In it ORG stressed the need to make several reservations and also a declaration on the interpretation of LAW ( c ) and ( e ) ( article DATE , article DATE ) ; it did not , however , mention any need for a similar declaration in respect of LAW ( article DATE ) .

ORG In a supplementary report which it sent to ORG on DATE , ORG returned to the question of reservations and interpretative declarations :

In our report of CARDINAL DATE we recognised that when ratifying the LAW , GPE should make , in addition to the aforementioned QUANTITY reservations , a declaration on the interpretation of LAW ( c ) and ( e ) ( article DATE , article DATE ) , which relate to free legal assistance and the free assistance of an interpreter ( DATE II CARDINAL ) ....

Since the publication of our previous report , a fresh difficulty has arisen which might lead GPE to make an additional reservation when ratifying the LAW . In its judgment of DATE in the PERSON case , ORG gave its interpretation of the concept of ‘ the determination of ... civil rights and ORG in LAW ( article DATE ) ....

The ORG ’s tendency to give a broad meaning to the word ‘ ORG raises tricky problems for GPE , where administrative authorities determine civil - law disputes and intervene in private - law relations . In order to ensure that a wide conception of civil disputes ( la contestation de caractère civil ) does not have repercussions on the organisation of public administration and of the courts in the cantons , it will probably be necessary to make a reservation concerning the scope of LAW ) when ratifying LAW . The wording of such a reservation will depend partly on the outcome of studies yet to be made of the subject and partly on any developments in the case - law of the Commission or the Court . We shall have an opportunity of determining our attitude to the subject in the communication we shall be sending you in due course concerning ratification of the LAW .

... " ( ORG , DATE , vol . I , pp . CARDINAL - CARDINAL ) .

ORG communicated the supplementary report officially to ORG .

ORG The communication foreshadowed in DATE reached ORG . In it ORG dealt , among other things , with the " effects on the system of public administration and of the courts in the cantons of the guarantee of a right of access to the courts in DATE ( article CARDINAL ) of the Convention " :

" In our supplementary report of DATE we noted among other things that when the Convention was being ratified , it would probably be necessary to make a reservation concerning the scope of the first sentence of LAW ( article DATE ) , whereby ... We reserved the right to study this problem in greater detail , however , and to determine our attitude to the matter in this communication .

In its judgment of DATE in the PERSON case ORG stated that for LAW ( article LAW to be applicable to a case it was not necessary that both parties to the proceedings should be private persons . The wording of LAW ( article DATE ) was far wider . The NORP expression ‘ contestations sur des droits et obligations de caractère civil’ covered all proceedings the outcome of which was decisive for private rights and obligations . The LANGUAGE text , ‘ determination of ... civil rights and ORG , confirmed this interpretation . In the ORG ’s opinion , the character of the legislation which governed how the matter was to be determined ( civil , commercial , administrative law , etc . ) or of the authority which was invested with jurisdiction in the matter ( ordinary court , administrative body , etc . ) was therefore of little consequence .

In order to assess the exact scope of this provision , it has to be asked at what stage of the domestic proceedings the requirements of LAW ( article DATE ) have to be satisfied . Valuable clues are given in the address CARDINAL of the delegates of ORG made to ORG in the PERSON case . According to Mr. PERSON , LAW ) of the ORG is designed only to secure ultimate judicial control of actions or decisions of public authority which affect , in particular , civil rights and obligations . This judicial control is furthermore limited : the relevant provision calls only for a fair hearing and not for a determination of the merits . In other words , it is not necessary that the administrative authorities themselves should comply with the requirements of LAW ) . But where their decisions have the effect of confirming , modifying or annulling civil rights or obligations , there must in the whole process be a judicial element of fair hearing .

Lastly , in criminal law , LAW provides that minor offences can be tried by an administrative authority . Furthermore , LAW empowers the cantons to appoint an administrative body to try offences committed by children or adolescents . In our report of CARDINAL DATE on the ORG we said that , despite these departures from the principle of separation of powers , independence and impartiality are guaranteed in the aforementioned cases in other ways . In several cantons , for instance , the administrative authorities called upon to exercise judicial functions are elected by the people and are independent of the executive . In those circumstances they can be equated with a ‘ tribunal’ within the meaning of LAW ( article DATE ) of LAW . Moreover , a member of the public who is not satisfied with an administrative decision can very often ask to have his case heard by a court under ordinary procedure . The court then gives judgment on the merits of the charge and acquits or convicts . Where , on the other hand , the decision taken by an administrative authority can be referred to a court not for a ruling on the merits but solely for review of its lawfulness ( pourvoi en nullité ) , the question arises whether this review procedure satisfies the requirements of LAW .

Following the interpretation given to LAW ( article LAW ) by the current President of ORG , we consider that that provision is intended only to ensure ultimate control by the judiciary over the acts or decisions of the public authorities . Moreover , it requires only a fair hearing and not a decision on the merits . ... " ( ORG , DATE , vol . I , pp . PERCENT ) .

ORG forwarded the communication officially to ORG .

ORG approved the LAW - and , at the same time , the reservations and interpretative declarations - on DATE . LAW recording the fact is worded as follows :

" ORG of ORG ,

Having regard to LAW ;

Having regard to ORG communication of CARDINAL DATE ,

Hereby decrees :

Article CARDINAL

The following are approved :

( a ) The Convention for the Protection of Human Rights and Fundamental Freedoms of CARDINAL DATE , as amended by LAW No . CARDINAL ( PCARDINAL ) of CARDINAL DATE , amending Articles CARDINAL , CARDINAL and DATE ( article CARDINAL , article CARDINAL , article CARDINAL ) of the Convention , and by LAW No . CARDINAL ( PCARDINAL ) of DATE , amending Articles CARDINAL and DATE ( article CARDINAL , article CARDINAL ) of the LAW , with the following reservations and declarations :

- Declaration on the interpretation of LAW ( article DATE ) : [ see paragraph CARDINAL above ]

... " ( Official Collection of Federal Statutes , DATE , pp . DATE ) .