AZOP (Croatia) - Decision 25-07-2022

AZOP - Pp-6117/2022

Authority:	AZOP (Croatia)
Jurisdiction:	Croatia
Relevant Law:	Article 229 of the Road Traffic Safety Act
Type:	Other
Outcome:	n/a
Started:	27.01.2022
Decided:	25.07.2022
Published:
Fine:	1.200,00 HRK
Parties:	n/a
National Case Number/Name:	Pp-6117/2022
European Case Law Identifier:	n/a
Appeal:	Unknown
Original Language(s):	Croatian
Original Source:	OPĆINSKI PREKRŠAJNI SUD U ZAGREBU (in HR)
Initial Contributor:	Presido Croatia

The Municipal Misdemeanor Court in Zagreb ruled that municipal wardens have a valid legal basis under Article 6 GDPR to collect and process vehicle registration numbers. The legal basis is a statutory obligation prescribed by Article 229 of the Act on Road Traffic Safety.

English Summary

Facts

The case concerned criminal proceedings before the Municipal Misdemeanor Court in Zagreb. The defendant was the owner of a vehicle found by a municipal warden on 21 July 2021 in a pedestrian zone. On 8 Sepember 2021, they received a letter notification about the offense committed that day, which obliged them to provide reliable information about the person using the vehicle, in accordance with Article 229 of the Act on Road Traffic Safety. The defendant did not comply with the obligation prescribed by the article within the time limit and by that failure he committed a misdemeanor under Article 229(7) of the Act on Road Traffic Safety.

The defendant was not at the scene at the time of the alleged crime, nor did the prosecutor request personal information from the defendant. However, on the basis of license plates personal information, the prosecutor established that the owner of the vehicle was the defendant. The defendant pointed out that the prosecutor clearly illegally obtained information about who was the owner of the vehicle with the registration number in question, in light of the GDPR, considering that the plate registration number was undoubtedly personal data.

When presenting their defense in writing, the defendant stated that they did not fill out the driver's information notification form because the vehicle had been driven by several people, i.e. the defendant and four other family members. Therefore, they could not determine with certainty who and when was driving the vehicle, especially since it was a matter of almost two months counting from the alleged commission of the offense. It could not be expected from anyone to know who was driving the vehicle at that time.

As a precaution, if the court were to take a different position, the defendant proposed to take into account mitigating circumstances, such as the fact that they had not been subject to criminal proceedings before, that they were unemployed and with no income.

Holding

The court ruled that all decisive facts and circumstances were confirmed by the defendant. However, the defendant wrongly considered that the time between the offence and notification letter were a reason for exclusion of liability, considering that the owner of the vehicle was subject to the obligations prescribed in Article 229 of the Road Traffic Safety Act. Therefore, in order to be able to provide reliable information at any time, the defendant should keep records so that they do not forget who was using the vehicle and when.

Most importantly, the court agreed that the license plate could be considered personal data of the defendant, thereby falling within the scope of the GDPR. However, it did not accept the defendant's argument that the collection of the vehicle plate number and owner identification were illegal. There was a valid legal basis for the processing of the defendant's personal data, namely a statutory legal obligation as stipulated under Article 6(1)(c) GDPR, in this case prescribed by Article 229 of the Act on Road Traffic Safety.

The Court found the defendant guilty and imposed a fine.

Comment

The court in this judgement did not discuss whether the processing of personal data should be subject to the GDPR or rather Directive (EU) 2016/680.

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English Machine Translation of the Decision

The decision below is a machine translation of the Croatian original. Please refer to the Croatian original for more details.

REPUBLIC OF CROATIA

MUNICIPAL OFFENSE COURT IN ZAGREB

Zagreb, Avenija Dubrovnik 8

Business number: 80. Pp-6117/2022

IN I M E R E P U B L I K E H R V A T S K E

P R E S U D A

The Municipal Misdemeanor Court in Zagreb, according to Judge Ivana Šurjak, with the participation of Ana Pavlek, as recorder, in misdemeanor proceedings against the defendant V. V., who is represented in the proceedings by defense attorney T. R., due to misdemeanors from Art. 229, paragraph 3 and paragraph 7 of the Road Traffic Safety Act ("Official Gazette", number 67/08, 48/10, 74/11, 80/13, 158/13, 92/14, 64/ 15, 108/17, 70/19 and 42/20), on the occasion of the defendant's objection to the mandatory misdemeanor order of G. V., U. Department ..., O..., Class: 340-08/21-02/00472, Reg. no.: 2186 -1-05-04/7-22-3 of January 27, 2022, after an urgent procedure, on July 25, 2022, publicly announced and

he decided

AND)

Based on Art. 183 of the Criminal Code ("Official Gazette", number 107/07, 39/13, 157/13, 110/15, 70/17 and 118/18),

Defendant: V. V., OIB: ..., with residential address V.

he is guilty

what:

as the owner of the vehicle with the registration number VŽ ... within the fifteen (15) day period, i.e. from ... to ..., did not submit to the Administrative Department ... credible information about the person who, at the time of committing the offense, was driving the vehicle with the registration number ... at ... hours markings VŽ ... at location V.

by which he committed an offense under Art. 229, paragraph 3 and paragraph 7 of the Road Traffic Safety Act,

so based on the cited regulations, with the application of art. 37 of the Criminal Code

to the defendant V. V. pronounced

FINE IN THE AMOUNT OF HRK 1,200.00 (in letters: one thousand two hundred kuna).

Based on Art. 33, paragraph 11 of the Misdemeanor Code, the defendant is obliged to pay a fine to the State Budget to the account number: HR1210010051863000160, model HR63, call to the number specified in the attached payment slip template, within 15 days of receiving this judgment, and otherwise act according to the provisions of Art. 34 of the Criminal Code.

If the defendant pays two-thirds of the imposed fine within the deadline set for him to pay the fine, it will be considered that the fine has been paid in its entirety pursuant to Art. 183, paragraph 2, in connection with Art. 152, paragraph 3 of the Misdemeanor Code.

II) Based on Art. 139, paragraph 3, in connection with Art. 138, paragraph 3 of the Misdemeanor Code, the defendant is obliged to compensate the costs of the misdemeanor proceedings in a lump sum of HRK 200.00 (two hundred kuna), to the benefit of the State Budget to the account number: HR1210010051863000160, model HR63, reference to the approval number specified in the attached payment slip template , within 15 days after receiving this judgment, otherwise the costs will be collected forcibly, based on Art. 152 of the Criminal Code

Explanation

1. Republic of Croatia, G. V., U. department ..., Department ..., under class number: 340-08/21-02/00472, Reg. no.: 2186-1-05-04/7-22-3 issued on 27 January 2022 mandatory misdemeanor order against the defendant, due to the misdemeanor factually and legally described in the sentence, to which the defendant filed an objection in a timely manner, through the defense attorney, attorney T.R., so it was invalidated and an urgent misdemeanor procedure was conducted.

2. The defendant, presenting his defense in writing, according to the defense counsel, stated that he did not fill out the driver's information form for the reason that the vehicle owned by him, registration number VŽ ... is driven by several people, i.e. the defendant and 4 other members of his family, mother L. V., father Ž. V., brother I.V. and common-law wife M.M., so he could not determine with certainty who ... at ... hours was driving that vehicle, especially since it is a matter of the passage of time of 50 days, i.e. a little less than 2 months counting from the alleged commission of the offense until the notification of the commission of the same is served. It is not objective to expect anyone to know two months ago who was driving the motor vehicle and when, and given that it is used by several people, members of the defendant's family. He points out that the prosecutor clearly illegally obtained information about who is the owner of the vehicle with the registration number VŽ ..., all while considering that the General Data Protection Regulation - GDPR, European Union Regulation no. 2016/679, which guarantees the protection and privacy of personal data of every citizen, while the registration number is undoubtedly personal data. Therefore, the defendant was not at the scene at the time of the alleged crime, nor did the prosecutor request personal information from the defendant, but on the basis of license plates-personal information, he established that the owner of the vehicle was the defendant, therefore, illegally. As a precaution, if the court takes a different position, the defendant proposes that it take into account mitigating circumstances, that he has not been punished either criminally or misdemeanor, that he is unemployed and has no income, so a fine with the costs of the procedure in the total amount would be excessive of HRK 5,100.00 caused irreparable damage to the defendant. As a result of all the above, it is suggested that the court, following the proceedings, issue a verdict acquitting the defendant, and secondly, that he be punished to the mildest possible extent, which will not cause irreparable damage to the same in terms of the imposed fine.

3. In the evidentiary proceedings, the court read the documentation submitted by the prosecutor, i.e. the letter-notification about the offense committed from July 21, 2021, p. 11 files, delivery note of the notification in question, p. 10 files, letter-data about the driver, p. 12 files, official note of July 21, 2021, p. 13 files, and inspected the photographs, p. 14 files

4. Then the court, bearing in mind that the factual situation was established, inspected the misdemeanor record of the defendant, from which it follows that he was not previously punished as a misdemeanor for similar or more serious traffic violations.

5. After the procedure, on the basis of the defendant's defense and the analysis of the evidence, the court found all the essential features of the offense in question in the defendant's conduct, since the defendant, as the owner of a personal vehicle, failed to submit credible information within the time limit about the person who was driving the vehicle when it offense committed, which fulfilled all the essential characteristics of the offense in question.

6. Namely, from the submitted documentation by the prosecutor, i.e. the letter-notification of the offense committed from July 21, 2021, the delivery note of the notification in question, the letter-data about the driver, the official note from July 21, 2021, and based on the inspection of the photos, improperly of the stopped vehicle, it was indisputably established that the vehicle reg. VŽ ... owned by the defendant, which was found by the municipal warden to be illegally stopped on July 21, 2021 in the pedestrian zone, so the defendant, as the owner, was delivered a letter-notification of the offense committed on July 21, 2021, obliging him to provide reliable information about the person to whom he gave control of his vehicle on the occasion, and all in accordance with Art. 229 of the Act on Road Traffic Safety. The defendant received the letter in question on September 8, 2021, but did not comply with the obligation stipulated in Art. 229, paragraph 3 of the Road Traffic Safety Act, and by which omission did he commit the offense from Art. 229, paragraph 7 of the Act on Road Traffic Safety. All decisive facts and circumstances were confirmed by the defendant himself in his defense, wrongly considering that the passage of time from the day of the violation of the illegal stopping of the vehicle is a reason for exclusion of liability, considering that the owner of the vehicle is subject to the obligations prescribed in Art. 229 of the Road Traffic Safety Act, and therefore, in order to be able to provide reliable information at any time, he can also keep records so that he does not forget who he let drive his vehicle due to the passage of time. Also, the court did not accept part of the defense in which the defendant claims that due to the fact that the license plate is personal data subject to protection on the basis of the GDPR-General Regulation on Data Protection, given that in this particular case the legal basis for requesting information is who is the owner of the vehicle with a certain license plate , legal or statutory obligation prescribed by art. 229 of the Act on Road Traffic Safety.

7. As a result of the above, the court declared the defendant guilty and imposed a fine appropriate to the manner and gravity of the offense committed, the degree of responsibility of the defendant, as well as all circumstances from Art. 36, paragraph 2 of the Misdemeanor Code. Among mitigating circumstances, when making the decision, the court especially took into account the defendant's previous impunity and the circumstance that credible information about the driver was requested for a traffic violation from Art. 82. paragraph 1. t. 10 of the Road Safety Act, for which the fine was much lower, i.e. HRK 300.00, while the court found no aggravating circumstances. Bearing in mind the nature and significance of the offense committed, and all the aforementioned circumstances, as well as the circumstance that the defendant was not punished for traffic offenses, the court applied the provisions of Art. 37 of the Misdemeanor Law, that is, reduced the fine below the legally prescribed range of fines from HRK 5,000.00 to 15,000.00, given that particularly extenuating circumstances have been established that confirm that even with such a reduced fine, the purpose of the punishment will be achieved.

8. Based on the wording of the cited regulations, the defendant is obliged to bear the costs of the misdemeanor proceedings in a lump sum, bearing in mind the complexity and length of the proceedings.

In Zagreb on July 25, 2022.

Recorder Judge
Ana Pavlek Ivana Šurjak

The verdict is final.

The judgment is delivered:

defendant: V. V., V.
to the defender: T. R., V.
prosecutor: G. V., U. department ..., Department ... V.
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