Effective Notice in Pecuniary Sanctions for Traffic Violations

BACKGROUND

The Plenary of the Constitutional Court, on June 4, 2019, issued Judgment No. 71-14-CN/19. This judgment resolves a constitutional review query submitted by the Judges of the Criminal Chamber of the Provincial Court of Justice of El Oro, within judicial proceeding No. 0014-2013-SP.

The proceeding that gave rise to the query concerns the challenge of several traffic fines that were allegedly not duly notified to Mr. Manuel Mesías Peralta Yánez. The claim, within judicial proceeding No. 0014-2013-SP, was rejected by the First Judge of Criminal Traffic Guarantees of El Oro. That decision was appealed but the appeal was not granted. Finally, a de facto appeal was filed and came before the consulting judges, who referred the case file to the Constitutional Court.

The rule whose constitutionality was submitted for review is Article 238 of the General Regulation for the Application of the Organic Law on Land Transportation, Traffic and Road Safety. The article under review refers to notification in cases of traffic violations detected by electronic and/or technological means.

ARGUMENTS OF THE CONSULTING JUDGES

The Judges of the Criminal Chamber of the Provincial Court of Justice of El Oro verified, after receiving the response from Delegation No. 1 of the Ecuadorian Traffic Commission, that the citations for the alleged traffic violations committed by the claimant had not been notified.

The judges concluded that, in that case, the fines would have been automatically generated against Mr. Peralta without him having been notified. The consulting judges mistakenly stated, based on an unsystematic interpretation, that Article 238 of the aforementioned Regulation establishes that, if the violation has been detected by electronic or technological means, the monetary sanction shall be applied to the owner of the vehicle without prior notification.

Despite the judges’ mistaken interpretation, they recognized that the lack of notification of the violations infringes the right to due process, specifically the right to defense enshrined in Article 76, numeral 7, of the Constitution.

SYSTEMATIC VERSUS UNSYSTEMATIC INTERPRETATION

The first paragraph of Article 238 of the General Regulation for the Application of the Organic Law on Land Transportation, Traffic and Road Safety establishes that:

“In the event that the traffic violation has been detected by electronic and/or technological means, and it has not been possible to determine the identity of the driver, only the corresponding monetary sanction for the committed violation shall be applied to the owner of the vehicle.”

The Plenary of the Constitutional Court considered that the interpretation given by the ordinary judges was unsystematic, since they concluded that, if it had not been possible to determine the identity of the driver, the corresponding monetary sanction could be imposed on the owner of the vehicle without prior notification of the citation.

On the other hand, the Court stated that, under a contextualized or systematic reading, the rule under review is compatible with the Constitution. The second, third, and fourth paragraphs refer to notification. Therefore, under the interpretation of the Constitutional Court, traffic violations must be notified to the owners of the vehicles when it has not been possible to determine the identity of the driver.

CONSTITUTIONAL ANALYSIS OF DUE PROCESS

The Constitutional Court developed its judgment based on the following legal issue:

“Is Article 238 of the General Regulation for the Application of the Organic Law on Land Transportation, Traffic and Road Safety contrary to the right to due process, specifically regarding the right to defense, provided for in Article 76, numeral 7, of the Constitution of the Republic?”

The judges stated that the right to defense is part of due process and includes several guarantees, such as the right to know the charges brought against a person in order to present arguments and exculpatory evidence at the appropriate time and under equal conditions, with the purpose of enforcing their rights and interests.

DECISION

The Plenary of the Constitutional Court declared the conditional constitutionality of Article 238 of the General Regulation for the Application of the Organic Law on Land Transportation, Traffic and Road Safety, provided that it is interpreted as follows:

i. If a traffic violation is detected through a technological tool and it is not possible to determine the identity of the driver, the competent traffic authority is obligated to notify the owner of the vehicle of the citation through the most effective and appropriate means, so that the owner may exercise the right to defense.

ii. Under no circumstances shall the monetary sanction be imposed on the owner of the vehicle without prior notification of the citation and without the owner having had the opportunity to file a challenge in the exercise of the right to defense.

iii. The three-day period for the owner of the vehicle to file a challenge shall be counted from the moment when the notification was effectively made. Such notification is not deemed to have occurred merely by publishing the citation on a website. Judicial bodies hearing challenges may only declare them untimely after verifying the date of notification, which must be proven by the traffic authority, as the body obligated to notify all citations in a timely and effective manner.