The problem is known since a long time : it happens too often that challenges of PV road to be discharged in a manner quite improper. France has been condemned several times by the european Court of Human rights (ECHR). The defender of rights, as the ombudsman of the Republic before him-have sounded the alarm. And finally, an effective remedy against a party to this drift will be guaranteed in a few months. A great advance indeed, but which has its limits. Analysis.

After several convictions of France by the european Court of Human rights (ECHR), in particular in three rulings in march 2012, a decree published in the official Journal on Wednesday should finally make it possible to reduce illegal discharges of challenges to road traffic offences. This legislative trend is expected for months, or even years. It however, will only come into force until 1 march 2014. Above all, it is not without leaving a taste of unfinished business.

Here are the three judgments of the ECHR, rendered march 8, 2012 :

Cadène against France

Célice against France

Josseaume v. France

“Even if we can only rejoice of this publication, force is to recognize that the writing seems to be quite restrictive,” admits Caroline Tichit, a lawyer specialized in the Code of the Road. The challenge, however, is great. Already in 2002, France had been condemned by the ECHR for this “violation of the rights of the defence and an unlawful restriction of the right of access to a court”.

what is it exactly ? This story is almost banal to a motorist who is accused of having committed an offence and who is being hit so minutes he decides to contest. But still it is necessary that its challenge meets a number of conditions in order to allow him access to an independent judge before whom he can expose his defence. It happens so often that claims are rightly rejected. But where this poses a problem “in a constitutional State such as ours, it is that it happens – more often than we think, moreover, that these disputes be discharged in a manner quite improperly, not that there are still real legal recourse against these abuses,” says Me Tichit.

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let’s Take a specific case, and relatively frequent. In the framework of the automated control and offences detected by speed cameras, to dispute a ticket, it is often necessary to record the amount of the fixed penalty. However, when the Officer of the public prosecutor (OMP), responsible for receiving and handling complaints of alleged offenders, decides that the dispute is inadmissible, the recording is beautiful and well received for good ! Once the PV set, the more means and access to a judge ! And the points are also deducted automatically.

This inability to seize the competent court an appeal against the decision of rejection is incompatible with the “right to an effective judicial remedy”, had also recognized the Constitutional Council, in the framework of a priority issue of constitutionality (QPC) at the end of 2010. In June 2012, it was the turn of defender of the rights of bang one’s fist on the table. In its report, transmitted to the ministries of Interior and Justice, Dominique Baudis was then denounced “the complexity of the repressive apparatus in the field of road safety and the increasing dematerialisation of the treatment of the tickets [that] do not allow to guarantee to the users the effectiveness of their rights.” And already in 2006, its predecessor, the mediator of the Republic, had dedicated an entire folder to this “illegal practice” of the OMP, which “shall rule directly on the merits of the claims that are addressed to them, instead of the address to the competent court”.

in fact, according To the article 530-1 of the code of criminal Procedure, the OMP does not theoretically have three options upon receipt of a protest :

– they can reject the claim as inadmissible, if, for example, is not motivated or are not accompanied by the notice of contravention; or

– they can renounce the exercise of criminal prosecution and drop the case ;

– or, of course, if the claim is admissible, they can make the referral to the court of competent jurisdiction (Police or local court).

Or, “it is not so rare to see them reject claims for reasons completely preposterous from a legal point of view !”, storm Me Tichit. Such as : “liable to pay a pecuniary” or “lack of sending of a registered letter,” while it was still in the legal time limit for the challenge… we must be aware that registered mail is, in fact, necessary to verify the compliance with the statutory time limits. Then if it is not the place to challenge this, such a rejection seems to still be disproportionate !”, if still annoys the lawyer.

The catch : the decree published Wednesday provides only the case where the dispute would be rejected on the grounds that it is not motivated. Reason course often also invoked, although this is not always true, but one reason that is so far from being the only problem. To resume the case of an owner of the vehicle flashed by a speed camera, if it has the misfortune to contest their ticket for the sole reason that he denies having been at the wheel of his car at the time of the facts, it would run the risk of seeing his claim dismissed on the basis of so-called lack of motivation… Incredible, but true !

Still, in the case of disagreement with the rejection of a OMP, rather than to provide a general use-as is planned when the contravention of the original has not been settled or disputed, or the result of a fixed penalty plus, “with what one calls the procedure of the incident litigation, the legislature has in fact decided to implement an additional type of redress”, analysis Me Tichit. “A sort of remedial session”. And will there be other grounds for rejection, potentially just as abusive ? There is more just have to wait to see in practice how the rules will evolve with the implementation of the decree… But we can already fear a limited effect.

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