The situation, in which appropriate judicial remedies are not available to the vehicle owner, who has not been driving the vehicle at the moment when the offence was recorded, is incompatible with the Satversme
On 28 March 2013 the Constitutional Court passed Judgement in Case No. 2012‑15‑01 “On Compliance of Part Three, Five, Seven and Eight of Section 436 of Road Traffic Law with Article 92 of the Satversme of the Republic of Latvia.”
In imposing penalty for an administrative offence, which has been recorded with technical means, without stopping the vehicle, the right to fair court set out in Article 92 of the Satversme must be respected. The restrictions to this right are proportional insofar as the right to request reviewing the penalty imposed is envisaged, but are not proportional insofar these create adverse consequences for the owner of the vehicle, but do not envisage appropriate judicial remedies for him.
The Contested Norms
The Constitutional Court examined the legal regulation included in Section 436 of Road Traffic Law (RTF), which envisages special features in the administrative process in relation to offences, which have been recorded with technical means, without stopping the vehicle.
Section 436 of RTL, inter alia, defines the legal basis for using technical means (photo devices or video devices) to record violations of road traffic rules, the type and scope of penalty imposed for offences recorded in this procedure, the type and content of documents to be drawn up concerning such offences, the rights and obligations of state institutions involved in this process, the rights and obligations of the holder, owner and driver of such vehicle, as well as the mechanisms for forced execution of the penalty imposed for such offences.
The Norms of Higher Legal Force
The compliance of the contested norms with the first and the second sentence of Article 92 of the Satversme was examined in the Case, these stipulate: “Everyone has the right to defend his or her rights and lawful interests in fair court. Everyone shall be presumed innocent until his or her guilt has been established in accordance with law.”
The Facts
The Applicant – the Ombudsman – holds that in accordance with the presumption of innocence enshrined in Article 92 of the Satversme, the State has to prove a person’s guilt in committing an offence, but not the person – his or her innocence. If a person is recognised as being guilty for committing an offence, even though the case does not contain evidence proving the person’s guilt, the presumption of innocence is violated.
The Ombudsman notes that the right to defend one’s interests in fair court, guaranteed by the first sentence of Article 92 of the Satversme, depends upon the person’s possibility to appeal against a decision adopted by an institution, however, the existing procedure in cases, when the guilty person fails to pay the fine in accordance with the procedure and within the term set out by law, prohibits the owner or the registered holder of a vehicle, if he is not the person, who committed the offence, to exercise this fundamental right.
Court Findings and Ruling
On expanding the scope and limits of the claim
The Constitutional Court examined the contested norms insofar these define the administrative proceedings in cases on exceeding the allowed speed limit.
The Constitutional Court concluded that in order to abide by the principles of the Constitutional Court legal proceedings, in this Case the possibility to expand the limits of the claim included in the application must be assessed. The Court recognised that expanding the limits of the claim would be possible, since the application and the written reply, as well as the opinions of all summoned persons assessed, as to the merits, not only the contested norms, but the whole legal institution envisaged by Section 436 of RTL (the contested regulation).
On the adverse consequences of the contested regulation for vehicle owners
The Constitutional Court concluded that the contested regulation allows a situation, when the adverse consequences envisaged by it may affect the owner of a vehicle because another person has failed to fulfil his obligation to pay the administrative fine. The only possibility for the owner to avoid these adverse consequences is to pay the monetary fine for the offence committed by another person. Thus, the adverse consequences may affect the person, who did not commit the respective offence.
On compliance of the contested regulation with the second sentence of Article 92 of the Satversme
The Constitutional Court first of all examined, whether the principle of the presumption of innocence enshrined in the second sentence of Article 92 of the Satversme allows deviation from the requirement that a person must not prove his or her innocence and whether in cases related to exceeding the allowed speed limit it is permissible to presume that at the moment when the offence was committed the owner of the vehicle was driving it.
The Constitutional Court concluded that Latvia’s regulatory enactments do not envisage the guilt or liability of the vehicle’s owner for administrative offences, committed by another person, using the vehicle owned by him. The contested regulation, essentially, does not envisage a presumption that the owner was driving the vehicle at the moment when the offence was committed, but transfers the obligation to identify the guilty person and to achieve that the person pays the fine from the state institution upon a private person – the vehicle owner.
The Court recognised that in this case the issue under examination is not the compliance of the contested regulation with the presumption of innocence, but whether the contested regulation complies with the procedural guarantees envisaged by the first sentence of Article 92 of the Satversme, i.e., the right to be heard and the right to access to a fair court.
On compliance of the contested regulation with the first sentence of Article 92 of the Satversme
The Constitutional Court noted that, irrespectively of whether the offence has been committed by the driver of a vehicle, who is not the owner of this vehicle, or a driver, who is the owner of this vehicle, the contested regulation envisages imposing a penalty upon these persons and the obligation to ensure that the penalty is paid. However, the contested regulation does not envisage the possibility for these persons to express their opinion on the existence of the offence and circumstances thereof before the penalty is imposed. Thus, the contested norms envisage restriction to an element in the right to fair trial – the right to be heard.
The Constitutional Court, referring to its judicature, noted that the right to free access to court, guaranteed by the first sentence of Article 92 of the Satversme, can be restricted only in cases of utmost necessity and only insofar as it is not divested as to merits. However, if such a restriction is, nevertheless, set out, then it must be examined, whether this has been done by a law adopted in due procedure, whether the restriction has a legitimate aim and whether the restriction is proportional to this aim.
The Constitutional Court concluded that the restrictions to fundamental rights following from the contested regulation have been established by law and that these restrictions have a legitimate aim – protection of public interests, and also that the contested regulation is appropriate for reaching the legitimate aim. Moreover, the Court also recognised that the Case contains no arguments demonstrating the existence of alternative means that would allow reaching the legitimate aim in the same quality.
In examining the compliance of the contested regulation with the principle of proportionality, the Constitutional Court assessed separately the restrictions to rights defined for the drivers and the owners of the vehicles.
As regards the restrictions to the rights of the drivers of vehicles, the Constitutional Court recognised these as admissible and compatible with the principle of proportionality, since these persons have the right to request reviewing the imposed penalty as to its merits after the penalty has been imposed.
As regards the restrictions to rights of the vehicle owners, the Constitutional Court recognised that insofar as the contested regulation applies to those cases, when the owner of the vehicle is not the driver of the vehicle, who has committed the offence, and the driver fails to pay the respective penalty, the restriction to the fundamental rights of such persons is significant. I.e., the owner of the vehicle, who has not been driving it at the moment when the offence was committed, is not heard before the adverse consequences set it, and also after the penalty has been imposed he has no right to request review of the imposed penalty. Moreover, regulatory enactments do not envisage a procedure for informing the state institutions about the driver of the vehicle, if such is known to him, in due time and thus preventing the setting in of adverse consequences. In such a situation it must be considered that the person has been deprived of the right to fair court as to merits.
Hence the Constitutional Court decided that the contested regulation, insofar as it does not envisage the right for the vehicle owner to request reviewing the imposed penalty, when the offence, which has been recorded in accordance with the procedure set out in Section 436 of RTL, has been committed by the driver of this vehicle, is incompatible with the principle of proportionality and, thus, also with Article 92 of the Satversme.
Losing validity
The Constitutional Court noted that the compatibility of the contested regulation with the Satversme can be achieved not only by amending or recognising as invalid some of the provisions included in it, but also by other means, for example, by introducing amendments to the Latvian Administrative Violations Code or in other regulatory enactments. Choosing an appropriate solution is the right and obligation of the legislator, not of the Constitutional Court. Moreover, the contested regulation should be recognised as invalid only if the Saeima failed to fulfil this obligation in due time. Therefore the Constitutional Court recognises Section 436 of RTL invalid as of 1 October 2013, if the legislator has failed to improve the regulation set out in regulatory enactments by this date in accordance with what has been noted in the Judgement.
The Constitutional Court drew attention to the fact that until new legal regulation is adopted; the right of vehicle owner to contest and appeal against the report-decision envisaged in Section 436 of RTL shall be ensured by applying directly Article 92 of the Satversme. I.e., the right to contest and appeal against the report-decision, envisaged by the contested regulation, shall be granted not only to the driver of the vehicle, who was driving the vehicle at the moment when the offence was recorded, but also to the owner of the vehicle, who was not driving the vehicle at the moment when the offence was recorded.
The Judgement is final and not subject to appeal. The text of the Judgement is also available on the home page of the Constitutional Court.
Linked case: 2012-15-01