FIFTH SECTION
\nCASE OF KANGERS v. LATVIA
\n(Application no. 35726\/10)<\/p>\n
JUDGMENT
\nSTRASBOURG
\n14 March 2019<\/p>\n
This judgment will become final in the circumstances set out in Article\u00a044 \u00a7\u00a02 of the Convention. It may be subject to editorial revision.<\/p>\n
In the case of Kangers v. Latvia,<\/strong><\/p>\n The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:<\/p>\n Angelika Nu\u00dfberger, President, Having deliberated in private on 5 February 2019,<\/p>\n Delivers the following judgment, which was adopted on that date:<\/p>\n PROCEDURE<\/strong><\/p>\n 1.\u00a0\u00a0The case originated in an application (no.\u00a035726\/10) against the Republic of Latvia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by a Latvian national, Mr J\u0101nis Kangers (\u201cthe applicant\u201d), on 2 June 2010.<\/p>\n 2.\u00a0\u00a0The applicant was represented by Mr A.\u00a0Zvejsalnieks, a lawyer practising in Riga. The Latvian Government (\u201cthe Government\u201d) were represented by their Agent, Ms K. L\u012bce.<\/p>\n 3.\u00a0\u00a0The applicant alleged, in particular, that a judgment finding him guilty of a repeat offence while his appeal with respect to the initial offence was still pending had been contrary to Article 6\u00a0\u00a7\u00a02 of the Convention.<\/p>\n 4.\u00a0\u00a0On 17 November 2015notice of thecomplaintunder Article 6\u00a0\u00a7\u00a02 of the Convention wasgiven to the Government and the remainder of the application was declared inadmissiblepursuant to Rule 54 \u00a7\u00a03 of the Rules of Court.<\/p>\n THE FACTS<\/strong><\/p>\n I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/p>\n 5.\u00a0\u00a0The applicant was born in 1983 and lives in J\u016brmala.<\/p>\n A.\u00a0\u00a0First set of administrative offence proceedings<\/strong><\/p>\n 6.\u00a0\u00a0On 20 November 2008 the police drew up an administrative offence report (administrat\u012bv\u0101 p\u0101rk\u0101puma protokols) stating that the applicant had violated Article 14915(4) of the Code of Administrative Offences(Latvijas Administrat\u012bvo p\u0101rk\u0101pumu kodekss) by driving a vehicle under the influence of alcohol with a blood alcohol concentration exceeding 1.5 permilles(0.15%). The applicant lodged an appeal.<\/p>\n 7.\u00a0\u00a0On 1 December 2008 the J\u016brmala City Court (J\u016brmalas pils\u0113tas tiesa) terminated the administrative offence proceedings, as it had failed to establish corpus delicti. This decision took effect on 5\u00a0January 2009, and the applicant\u2019s driving licence card was returned to him.<\/p>\n 8.\u00a0\u00a0On 10 February 2009 a prosecutor lodged an appeal (apel\u0101cijas protests) against the decision of 1 December 2008. The Riga Regional Court (R\u012bgas apgabaltiesa) instituted appeal proceedings. On 23\u00a0February 2009 the applicant received notice of the hearing,whichwas set to take place in four days. He asked for the hearing to be postponed so that he could prepare his defence.The Riga Regional Court dismissed that request and heard the case in the applicant\u2019s absence.<\/p>\n 9.\u00a0\u00a0By a judgment of 27\u00a0February 2009 the Riga Regional Court quashed the decision of 1\u00a0December 2008. It found that the applicant had committed an offence under Article 14915(4) of the Code of Administrative Offences and imposed the following penalties: fifteen days\u2019 administrative detention;a fine of 500 lats (LVL\u2013 approximately 685 euros (EUR)); a two-year driving ban; and a ban on obtaining a licence to operate recreational crafts for two years. The decision was not amenable to appeal and took effect on 6\u00a0March 2009 when its text was finalised.<\/p>\n 10.\u00a0\u00a0The applicant complained to the Ministry of Justice that a final court decision had been quashed. On 26\u00a0March 2009 the Ministry responded that under the Code of Administrative Offences the prosecutor had the right to appeal against decisions taken in administrative offence proceedings and that there wereno time-limits for doing so.<\/p>\n 11.\u00a0\u00a0On 25 March 2009 the applicant requested that the execution of the judgment of 27\u00a0February 2009 be suspended. By a final decision of 28\u00a0April 2009 the Riga Regional Court dismissed that request.<\/p>\n B.\u00a0\u00a0Second set of administrative offence proceedings<\/strong><\/p>\n 12.\u00a0\u00a0On 31 July 2009 the police drew up anadministrative offencereport stating, inter alia, that the applicant had driven a car whiledisqualified, in violation of Article 1494(6) of the Code of Administrative Offences (hereinafter \u201cthe initial offence\u201d). On 1 September 2009 a fine of LVL\u00a0250 (approximately EUR 343) was imposed on him. On 7\u00a0October 2009that decision was upheld by the State Police.<\/p>\n 13.\u00a0\u00a0On 19 October 2009 the applicant lodged an appeal with the administrative courts. He argued that on 1December 2008 the first set of administrative offence proceedings had been terminated and that the relevant decision had taken effect. His driving licence card had been returned to him.Under domestic law, decisions that had become final could not be quashed on appeal.<\/p>\n 14.\u00a0\u00a0On 20 December 2010 the Administrative District Court (Administrat\u012bv\u0101 rajona tiesa) dismissed the appeal, noting that the decision of 1 December 2008 had been set aside by the Riga Regional Court, whereas the judgment of 27\u00a0February 2009 revoking his right to drive vehicleshad taken effect and was binding. Thus, on 31 July 2009 the applicant had driven a car even though his licence had been revoked.<\/p>\n 15.\u00a0\u00a0The applicant appealed before the Administrative Regional Court (Administrat\u012bv\u0101 apgabaltiesa), which by a final judgment of 24 April 2012 upheld the judgment of the first-instance court.It added that the twenty-day time-limit for lodging an appeal only applied to persons against whom administrative offence proceedings had been instituted. It did not apply to prosecutorsin the exercise of their right to lodge an appeal. Hence, in the applicant\u2019s case the prosecutor had been entitled to appeal against the decision of 1 December 2008 even after it had taken effect. Furthermore, the judgment of 27\u00a0February 2009 had become final and was legally binding. Its legality could not be reassessed in the present set of proceedings. Lastly, there was no indication that the applicant had been unaware of the fact that his driving licence had been revoked.<\/p>\n C.\u00a0\u00a0Third set of administrative offence proceedings<\/strong><\/p>\n 16.\u00a0\u00a0On 23 September 2009 the police drew up an administrative offence report stating that the applicant had driven a car whiledisqualified and that the offence had been committed repeatedly within a year, in violation ofArticle 1494(7) of the Code of Administrative Offences (hereinafter \u201cthe repeat offence\u201d). The applicant lodged an appeal.<\/p>\n 17.\u00a0\u00a0On 6 November 2009 the Riga City Zemgale District Court (R\u012bgas pils\u0113tas Zemgales priek\u0161pils\u0113tas tiesa) found the applicant administratively liable under Article 1494(7) of the Code of Administrative Offences for driving while disqualified repeatedly within a year. In establishing the facts the court referred to the judgment of 27\u00a0February 2009 (see paragraph\u00a09 above) and the administrative offence report of 31\u00a0July 2009 (see paragraph\u00a012 above).The court imposed a penalty of five days\u2019 administrative detention and a fine of LVL\u00a0400 (approximately EUR\u00a0549).<\/p>\n 18.\u00a0\u00a0The applicant appealed against this judgment arguing (i) that the judgment of 27\u00a0February 2009 was unlawful and (ii) that the repeated nature of the offence could not be established, as his appeal concerning the administrative offence report of 31 July 2009 (relating to the initial offence) was still pending.The applicant requested that the court either terminate the proceedings or suspend themuntil the conclusion of the administrative offence proceedings concerning the initial offence.<\/p>\n 19.\u00a0\u00a0On 26 February 2010 the Riga Regional Court by a final judgment upheld the finding that the applicant had committed a repeat offence.It noted that there was no reason to conclude that a person could not be found guilty of a repeat offence while the decision concerning the initial offence was being appealed against. The fact that the appeal proceedings were still pending could not be used as a criterion to determine whether the person had already been administratively punished. The only criterion for determining the repeated nature of the offence was whether or not the decision on the initial offence had been set aside or its legal effect suspended at the time the decision on the repeat offence was being taken. In the absence of such circumstances, the findings of the decision on the initial offence were legally binding and had to be taken into account when classifying the second offence as a repeat offence.Referring to Article 283 of the Code of Administrative Offences, the court noted that an appeal against a decision revoking a person\u2019s driving licence did not suspend enforcement of that decision. Accordingly, the appeal lodged against the decision concerning the offence of 31 July 2009 (the initial offence) did not preclude the offenceunder considerationbeing classified as a repeat offence and the proceedings being concluded while that appeal was still pending.<\/p>\n 20.\u00a0\u00a0On 2 June 2010, when the applicant lodged his application with the Court, he submitted that he had already served the sentence of five day\u2019s administrative detention and had already paid the fine imposed in the third set of administrative offence proceedings. The Government did not contest this allegation.<\/p>\n II.\u00a0\u00a0RELEVANT DOMESTIC LAW AND PRACTICE<\/p>\n A.\u00a0\u00a0Code of Administrative Offences<\/strong><\/p>\n 21.\u00a0\u00a0Article 14915(4) of the Code of Administrative Offences establishes administrative liability for driving a vehicle under the influence of alcohol, if the blood alcohol concentration exceeds 1.5\u00a0permilles (0.15%). The penalty for this offence (if the vehicle driven was a car)at the pertinent time wasadministrative detention for a period of ten to fifteen days, a fine of LVL 500 (approximately EUR 685) and a ban on driving vehicles for a period of two years. In addition, in accordance with Article 29 and Article\u00a0293 of the Code, the driving banalso resulted in a ban on obtaining a licence to operate recreational crafts.<\/p>\n 22.\u00a0\u00a0Article1494(6) of the Code provides that a person is to be held administratively liable for drivingwithout alicence or while disqualified. At the relevant time the fine for this offence ranged from LVL 200 to 300 (approximately EUR 274 to\u00a0411).<\/p>\n 23.\u00a0\u00a0Under Article1494(7) the person is to be held liable for the same offence, if it has been committed repeatedly within a year. At the relevant time the penalty for a repeat offence was administrative detention of five to fifteen days and a fine of LVL 400 (approximately EUR\u00a0549).<\/p>\n 24.\u00a0\u00a0Article 242 of the Code at the relevant time provided that a prosecutor exercised supervisory functions in administrative offence proceedings and could, inter alia, appeal against decisions taken in those proceedings. Article 282 set out the prosecutor\u2019s right to lodge an appeal against decisions taken in administrative offence proceedings. These provisions contained no indication of any time-limits.By contrast, under Article 2811(2),persons against whom the judgment in the administrative offence proceedings had been taken hadtwenty days to lodge an appeal.<\/p>\n 25.\u00a0\u00a0Article 283 of the Code at the relevant time provided that the lodging of an appeal, including a prosecutor\u2019s appeal,suspended the execution of the decision until the adjudication of the case. The provision contained some exceptions, including with regard to decisionsconcerning driving disqualifications.<\/p>\n B.\u00a0\u00a0Administrative Procedure Law<\/strong><\/p>\n 26.\u00a0\u00a0Section 185(1) of the Administrative Procedure Law provides that an application lodged with the court for an administrative decision to be set aside, declared invalid or declared as having lost its legal force, suspends the legal effectof thatadministrative decision from the date the application is received by the court. In accordance with section 185(4)(2), this provision is not applicable where different regulations in other laws apply.<\/p>\n C.\u00a0\u00a0Case-law of the Supreme Court<\/strong><\/p>\n 27.\u00a0\u00a0In relation to the domestic case-law concerning repeat administrative offences the Government submitted a judgment of 28\u00a0February 2008 deliveredby the Administrative Department of the Senate of the Supreme Court (Augst\u0101k\u0101s tiesas Sen\u0101ta Administrat\u012bvo lietu departaments) in a dispute between a limited liability company and the State Revenue Service.The case concerned a fine ofLVL\u00a0100 (approximately EUR 137) for the repeat administrative offence of declaring goods under a false name. In its relevant part the judgment reads:<\/p>\n \u201c[8] … an administrative penalty is considered to be imposed from the moment the decision on administrative penalty takes effect.<\/p>\n [9] An institution\u2019s … decision in an administrative offence case…is an administrative decision. Accordingly, …it takes effect at the moment it is served on the addressee.<\/p>\n [10] Even though an institution\u2019s decision on administrative penalty takes effect at the moment it is served on the addressee, …it is amenable to administrative or judicial appeal.<\/p>\n Section 185(1) of the Administrative Procedure Law provides that an application for an administrative decision to be set aside suspends the legal effect of that administrative decision from the date the application is received by the court.<\/p>\n …in accordance with the aforementioned provision, the suspension of the legal effect of the administrative decision suspends any legal consequences of this administrative decision. Accordingly, if the aforementioned provision would be applicable to adecision on an administrative penalty, then in the event of an appeal during the court proceedings there would be no grounds to consider that the person has been administratively punished.<\/p>\n [11] However, section 185(4)(2) of the Administrative Procedure Law provides that the first paragraph of this section is not applicable to situations which are regulated by other laws. In other words, section 185(1) of the Administrative Procedure Law is not applicable if the situation is governed by lex specialis included in another law. Accordingly, it has to be established whether there is such lex specialis.<\/p>\n [12] Article 283 of the Code of Administrative Offences provides that the lodging of an appeal suspends the execution of the decision …<\/p>\n Accordingly, with respect to the decisions imposing an administrative sanction, the Code of Administrative Offences provides that it is the execution of the decision that is suspended and not the legal effect of that decision, as is stipulated in section 185 of the Administrative Procedure Law.<\/p>\n [13] …the suspension of the legal effect of a decision is a broader concept, which means that from the beginning of the appeal proceedings until their conclusionthe legal situation is the same as [it was] prior to the taking of the administrative decision …That is to say, all legal consequences of the administrative decision are suspended. By contrast, the suspension of the execution of an administrative decision is a narrower concept, which only concerns enforcement and not the other legal consequences of the administrative decision … These other consequences remain effective …<\/p>\n [14] It follows that Article 283 of the Code of Administrative Offences is lex specialisin relation to section 185(1) of the Administrative Procedure Law.That is to say, it contains a different regulation with respect to administrative offence proceedings as compared to the general norm included in the Administrative Procedure Law …<\/p>\n Accordingly, the act of appealing a decision on administrative penalty in itself does not affect the legal status of the person as being administratively sanctioned.<\/p>\n …<\/p>\n [16] The Administrative Regional Court has rightly pointed out that a decision to hold a person administratively liable under a provision of the Code of Administrative Offences, under which one of the elements of the offence is repeated commission of that offence within a year of the administrative punishment … would be unjustified if the first decision concerning the administrative punishment … which formed the basis of establishing the repetitiveness, [was] quashed on appeal.<\/p>\n However, the Administrative Regional Court has drawn an unfounded conclusion that a person cannot be sanctionedunder a provision that provides for repetitiveness as one of the elements of that offence merely because the first decision concerning the administrative punishment is being appealed against …<\/p>\n Thus, the fact whether the first decision is or is not being appealed against in itself cannot be used as a criterion to determinewhether the person has been administrativelysanctioned. The criterion is whether the first decision is in effect at the time the second decision is being taken. If it is in effect at the time the punishment for a repeat offence is being imposed (it has not been quashed, its legal effect has not been suspended), it is legally binding and, hence, has to be taken into account when classifying the second offence.<\/p>\n However, if a court when assessing the legality of the second decision (whereby the person has been held legally liable for a repeat offence) considers that adjudication of the case is not possible prior to the conclusion of the proceedings concerning the legality of the first offence (which formed the basis of the finding of the repeated nature of the offence), the court may suspend the proceedings…After the first case has been adjudicated the court may take into account its outcome, thereby also attaining a fair resolutionof the second case.<\/p>\n In addition, if the first decision is quashed after the proceedings concerning the repeat offence have been concluded, a fair resolution of the case may be attained by applying [the section of the Administrative Procedure Law concerning the initiation of administrative proceedings in the institution de novo, if the factual circumstances have changed in the addressee\u2019s favour, or the section on the adjudication of a case de novo on the basis of newly discovered circumstances, if the judgment or the institution\u2019s decision that had formed the basis of the decision in the administrative proceedings has been set aside].<\/p>\n On the other hand, if during the appeal proceedings the first decision is found to be legal, then in the second set of proceedings a fair resolution of the case may only be attained if the repeated nature of the offence was taken into account at the time of its adoption.<\/p>\n [17] The Administrative Regional Court has made an unfounded reference to a decision of the Supreme Court, taken in a plenary session, …stating that a person being held criminally responsible in another set of criminal proceedings where the judgment has not yet taken effect cannot be invoked to establish repetitiveness. The Administrative Regional Court has not taken into account that an institution\u2019s decision in administrative offence proceedings takes effect when it is served on the addressee …That is to say, at the time of lodging the appeal it has already taken effect.\u201d<\/p>\n THE LAW<\/strong><\/p>\n I.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 6\u00a0\u00a7\u00a02 OF THE CONVENTION<\/p>\n 28.\u00a0\u00a0The applicant complained that he had been found guilty of a repeat offence while his appeal concerning the initial offence was still pending, in violation of the presumption of innocence guaranteed under Article 6\u00a0\u00a7\u00a02 of the Convention, which reads as follows:<\/p>\n \u201cEveryone charged with a criminal offence shall be presumed innocent until proved guilty according to law.\u201d<\/p>\n 29.\u00a0\u00a0The Government contested that argument.<\/p>\n A.\u00a0\u00a0Admissibility<\/strong><\/p>\n 1.\u00a0\u00a0Exhaustion of domestic remedies<\/em><\/p>\n 30.\u00a0\u00a0The Government pointed out that at the time the applicant had lodged his application with the Court the second set of administrative offence proceedings concerning the initial offence had not yet been concluded. Had the final judgment in those proceedings called the presumption of fact made in the third set of proceedingsconcerning the repeat offence into question, the applicant would have had access to an effective remedy \u2013 he could haverequested new adjudication of the case on the basis of a change in factual circumstances.<\/p>\n 31.\u00a0\u00a0The applicant disagreed that he should have had to await the final decision in the second set of proceedings. The essence of his complaintconcerned the decision taken in the third set of proceedings concerningthe repeated nature of the offence,and he had availed himself of every opportunity to appeal in relation to thatdecision.<\/p>\n 32.\u00a0\u00a0The Court reiterates that the only remedies that Article 35 \u00a7 1 of the Convention requires to be used are those that relate to the breaches alleged and that, at the same time, are available and sufficient (see, among many authorities, Fatullayev v. Azerbaijan, no. 40984\/07, \u00a7\u00a0151, 22 April 2010). According to the applicant, the violation of Article 6\u00a0\u00a7\u00a02 emanated from the fact that the repeated nature of the offence had been established before the proceedings concerning the initial offence had been finalised. Consequently, prior to lodging his application with the Court the applicant was required to use only those domestic remedies which were capable of addressing that particular complaint.<\/p>\n 33.\u00a0\u00a0The Court is of the view that a subsequent opportunity to challenge the ruling concerning the repeated nature of the offence would not have addressed the applicant\u2019s complaint that that finding had been made prematurely and in violation of the presumption of innocence. The Government did not refer to any remedy that would have enabled the applicant to invite the domestic courts to find a violation of the presumption of innocence from a procedural standpoint (compare Konstas v.\u00a0Greece, no.\u00a053466\/07, \u00a7 29, 24 May 2011). Accordingly, the applicant was not required to await the outcome in the second set of administrative offence proceedings to potentially avail himself of the remedy proposed by the Government.<\/p>\n
\nGanna Yudkivska,
\nAndr\u00e9 Potocki,
\nS\u00edofra O\u2019Leary,
\nM\u0101rti\u0146\u0161 Mits,
\nGabriele Kucsko-Stadlmayer,
\nLado Chanturia, judges,
\nand Claudia Westerdiek, Section Registrar,<\/p>\n