Lt

On not returning the driving licence as a measure for ensuring administrative proceedings

Case No. 11/2000

 

 

THE CONSTITUTIONAL COURT OF

THE REPUBLIC OF LITHUANIA

 

R U L I N G

 

On the compliance of Paragraph 4 of Article 269 of the Code of Administrative Violations of Law of the Republic of Lithuania with the Constitution of the Republic of Lithuania

 

Vilnius, 2 October 2001

 

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court: Egidijus Jarašiūnas, Egidijus Kūris, Zigmas Levickis, Augustinas Normantas, Vladas Pavilonis, Jonas Prapiestis, Vytautas Sinkevičius, Stasys Stačiokas, and Teodora Staugaitienė

The court reporter—Daiva Pitrėnaitė

Pranas Petkevičius, a senior consultant to the Legal Department of the Office of the Seimas, acting as the representative of the Seimas of the Republic of Lithuania, the party concerned

The Constitutional Court of the Republic of Lithuania, pursuant to Paragraph 1 of Article 102 of the Constitution of the Republic of Lithuania and Paragraph 1 of Article 1 of the Law on the Constitutional Court of the Republic of Lithuania, on 4 September 2001, in its public hearing, considered case No. 11/2001 subsequent to the petition submitted to the Constitutional Court by the Vilnius Regional Administrative Court, the petitioner, requesting an investigation into whether the provision of Paragraph 4 of Article 269 of the Code of Administrative Violations of Law of the Republic of Lithuania that in cases of decisions to impose a fine the driving licence shall not be returned until the payment of the imposed fine is in compliance with Paragraph 5 of Article 31 and Paragraph 1 of Article 32 of the Constitution of the Republic of Lithuania.

The Constitutional Court

has established:

I

The petitioner—the Vilnius Regional Administrative Court—was considering an administrative case. The court suspended the consideration of the case and applied to the Constitutional Court requesting an investigation into the compliance of the provision of Paragraph 4 of Article 269 of the Code of Administrative Violations of Law (hereinafter also referred to as the CAVL) that in cases of decisions to impose a fine the driving licence shall not be returned until the payment of the imposed fine with Paragraph 5 of Article 31 and Paragraph 1 of Article 32 of the Constitution.

II

The petition of the petitioner is based on the following arguments.

1. Article 20 of the CAVL provides that an administrative penalty is a measure of liability designated to punish the persons who have committed an administrative violation of law as well as in an attempt to educate them so that they will observe the laws, respect the rules of communal life, and that the transgressor of law and other persons would not commit new violations of law. Article 30 of the CAVL provides that a penalty for an administrative violation of law shall be imposed under the limits specified in the normative act providing for liability for the committed violation of law, and strictly in line with this code and other legal acts concerning administrative violations of law. As administrative penalties, the fine and the deprivation of a special right are provided for in Article 21 of the CAVL.

2. The sanction set down in Paragraph 1 of Article 126 of the CAVL is an alternative one. It provides for an opportunity, for the committed violation of law, either to impose a fine on the transgressor or to deprive him of the right to drive any vehicle. However, among the other measures, provided by law, of ensuring the legal proceedings in administrative violations of law, Paragraph 4 of Article 269 of this code provides for seizure of the driving licence until the payment of the imposed fine.

3. In the opinion of the petitioner, after a fine has been imposed on the driver, an additional restriction on his rights is applied to him, which is not provided for in the sanction set in the article concerning the committed violation of law. Meanwhile, Paragraph 5 of Article 31 of the Constitution provides that no person may be punished for the same offence twice, therefore, the court has doubts whether the provision of Paragraph 4 of Article 269 of the CAVL that the driving licence shall not be returned until the payment of the imposed fine is in compliance with Paragraph 5 of Article 31 of the Constitution and the provision of Paragraph 1 of Article 32 of the Constitution that citizens may move and choose their place of residence in Lithuania freely, and may leave Lithuania at their own will, as, upon the imposition of the fine, due to the non-returning of the driving licence until the payment of the fine, the right of the person to travel abroad by car is restricted.

III

In the course of the preparation of the case for the Constitutional Court hearing, written explanations were received from P. Petkevičius, the representative of the party concerned—the Seimas.

1. The representative of the party concerned pointed out that provisions of Chapter 19 of the CAVL establish the measures ensuring the legal proceedings in legal cases of administrative violations of law. Article 264 of this code points out that in an attempt to put a stop to administrative violations of law, to draw up protocols, to ensure that cases be considered timely and fairly and decisions be implemented in legal cases of administrative violations of law, an administrative detention, frisk of a person, inspection of items, seizure of items and documents shall be permissible. In order to ensure implementation of a decision concerning imposition of administrative penalty, it is provided for in Paragraph 4 of Article 269 of the CAVL that, upon commission of a violation for which either a fine or deprivation of the right to drive a vehicle may be imposed, the driving licence shall be seized from the driver until the payment of the imposed fine. This measure is absolutely lawful and reasonable as it helps ensure the accomplishment of the imposed penalty and its efficiency in the course of restraint of frequently committed violations of law.

2. P. Petkevičius noted that the measures ensuring the legal proceedings in legal cases of administrative violations of law provided for in the CAVL (including those pointed out in Paragraph 4 of Article 269) are not the administrative penalties the types of which are indicated in Article 21 of this code. The measures ensuring the legal proceedings in legal cases of administrative violations of law are of a procedural character, they establish only the procedure of application and accomplishment of penalties, therefore, it would be a mistake to identify these measures with penalties.

3. In the opinion of the representative of the party concerned, the non-returning of the driving licence for the transgressor until the payment of the fine does not infringe the rights of persons provided for in Paragraph 1 of Article 32 of the Constitution. Under Paragraph 4 of Article 269 of the CAVL, such a transgressor is issued a temporary permit to drive a vehicle.

IV

In the course of the preparation of the case for the judicial consideration, written explanations were received from G. Švedas, Vice-Minister of Justice, and A. Šakočius, Head of the Police Law Department of the Law University of Lithuania.

V

At the Constitutional Court hearing, the representative of the party concerned—the Seimas—P. Petkevičius virtually reiterated the arguments set forth in his written explanations.

At the Constitutional Court hearing the specialist J. Truska, a commissioner at the Administrative Activities Division of the Road Police Service, spoke.

The Constitutional Court

holds that:

1. Paragraph 4 of Article 269 of the CAVL provides: “Upon commission of a violation for which either a fine or deprivation of the right to drive a vehicle, a river boat or a small boat may be imposed under this Code, until adoption of a decision in the legal case, the driving licence from the driver, or the navigating licence from the navigator of boat (i.e. navigating licence of a river boat or a small boat or the registration documents of the vehicle) shall be seized and a temporary permit to drive a vehicle or to navigate a river boat or a small boat or a temporary document of registration of the vehicle shall be issued and this shall be entered into the protocol of the administrative violation of law. In cases of decisions to impose a fine or to deprive of the right to drive a vehicle or navigate a river boat or a small boat, the driving licence (navigating licence of a river boat or a small boat) shall not be returned, while the validity of the temporary permit shall be extended until the expiration of the established term during which the complaint may be filed, or until adoption of a decision concerning the complaint, or until the payment of the imposed fine.”

The petitioner doubts whether the provision of Paragraph 4 of Article 269 of the CAVL that in cases of decisions to impose a fine the driving licence shall not be returned until the payment of the imposed fine is in compliance with Paragraph 5 of Article 31 and Paragraph 1 of Article 32 of the Constitution.

2. Assessing the compliance of the impugned provision of Paragraph 4 of Article 269 of the CAVL with the Constitution, one has to clarify the content of legal regulation established therein.

Under Paragraph 4 of Article 269 of the CAVL, upon commission of a violation for which either a fine or deprivation of the right to drive a vehicle may be imposed, in cases of decisions to impose a fine the driving licence is not returned to the person, but he is issued a temporary permit to drive a vehicle, which is extended until the payment of the fine. Such legal regulation means that in all cases when a fine is imposed for a person for violation of the Road Traffic Rules, his driving licence, i.e. the document confirming that the person has the right to drive a vehicle, is seized and a temporary permit to drive a vehicle is issued instead.

The temporary permit to drive a vehicle is of different form than the driving licence recognised in other states, and it is valid only temporarily. The temporary permit to drive a vehicle confirms the fact that the person may exercise this right in Lithuania only.

3. Paragraph 5 of Article 31 of the Constitution provides: “No person may be punished for the same offence twice.”

In this constitutional provision the entrenched constitutional principle non bis in idem means a prohibition on punishing twice for the same offence. This constitutional principle is also applicable in regard with other committed violations of law (the Constitutional Court’s ruling of 7 May 2001).

Under the impugned provision of Paragraph 4 of Article 269 of the CAVL, the non-returning of the driving licence until the payment of the imposed fine is a measure of ensuring the legal proceedings in administrative cases. The impugned provision of the law regulates not the relations of imposition of the administrative penalty for the committed violation of law but those arising in the course of the ensuring of the fulfilment of the imposed administrative penalty. The non-returning of the driving licence until the payment of the imposed fine is not a penalty for the committed violation of the Road Traffic Rules. The purpose of the non-returning of the driving licence is different, i.e. to ensure that the imposed fine be paid. From this one can draw the conclusion that the non-returning of the driving licence until the payment of the imposed fine may not be regarded as violating the constitutional principle non bis in idem.

On the grounds of the arguments set forth, it should be concluded that the provision of Paragraph 4 of Article 269 of the CAVL that in cases of decisions to impose a fine the driving licence shall not be returned until the payment of the imposed fine is in compliance with Paragraph 5 of Article 31 of the Constitution.

4. Paragraphs 1 and 2 of Article 32 of the Constitution provide:

Citizens may move and choose their place of residence in Lithuania freely, and may leave Lithuania at their own will.

This right may not be restricted except as provided by law and if it is necessary for the protection of State security or the health of the people, or to administer justice.”

The petitioner requests an investigation into the compliance of the impugned provision of Paragraph 4 of Article 269 of the CAVL with entire Paragraph 1 of Article 32 of the Constitution, however, in its petition it presents arguments concerning the compliance of the impugned provision of Paragraph 4 of Article 269 of the CAVL with not entire Paragraph 1 of Article 32 of the Constitution but only the right of citizens to leave Lithuania of their own free will which is entrenched in the said paragraph. Taking account of the arguments set down in the petition of the petitioner, the Constitutional Court will consider whether the impugned provision of Paragraph 4 of Article 269 of the CAVL is in compliance with the provision of Paragraph 1 of Article 32 of the Constitution that citizens may leave Lithuania at their own will.

The provision of Paragraph 1 of Article 32 of the Constitution that citizens may leave Lithuania of their own free will means that a citizen has the right to decide by himself whether to leave Lithuania, to choose the time and a manner of departure. The right to leave Lithuania of one’s own free will means that one may not establish any permission procedure to leave Lithuania, i.e. one may not establish any procedure by which a citizen would have to request a state institution for a permit to leave Lithuania. The constitutional right to leave Lithuania of one’s own free will pre-supposes the duty of the state to establish such a procedure of one’s leaving Lithuania so that the citizen would not experience unreasonable restrictions. The right of citizens to leave Lithuania of their own free will consolidated in Paragraph 1 of Article 32 of the Constitution may be limited by law only and in case there are the bases provided for in Paragraph 2 of Article 32 of the Constitution, i.e., if it is necessary for the protection of state security or the health of the people, or to administer justice.

The impugned provision of Paragraph 4 of Article 269 of the CAVL that upon the imposition of a fine the driving licence shall not be returned virtually means that the person may not make use of the document abroad, certifying that he is entitled to drive a vehicle. However, the fact that the person may not make use of the said document abroad, certifying that he is entitled to drive a vehicle, does not mean that the citizen’s right to leave Lithuania of his own free will is restricted or denied.

Taking account of the arguments set forth, it should be concluded that the provision of Paragraph 4 of Article 269 of the CAVL that in cases of decisions to impose a fine the driving licence shall not be returned until the payment of the imposed fine is in compliance with Paragraph 1 of Article 32 of the Constitution.

5. The Constitution shall be an integral and directly applicable act (Paragraph 1 of Article 6 of the Constitution). In its ruling of 13 June 2000, the Constitutional Court held that it is impossible to interpret the norms set forth in the articles of the Constitution which were pointed out by the petitioner by keeping them separate from other norms of the Constitution.

The Constitutional Court notes that in the course of the assessment of the conformity of the impugned laws and other legal acts with the Constitution, it is important to clarify not only their relation with the norms of the Constitution pointed out by the petitioner but also the principles set down in the Constitution.

The legislature, establishing administrative liability for violations of law, must observe the principles consolidated in the Constitution. The entire legal system must be based upon the constitutional principle of a state under the rule of law, which also pre-supposes the proportionality of the established legal liability.

The Constitutional Court has held that the measures established by the state for violations of law must be proportional (adequate) for the violation of law, must be in conformity with legitimate and commonly important objectives, must not restrict the person more than is reasonably necessary to achieve these objectives. The constitutional principles of justice and a state under the rule of law also mean that that “there must be a fair balance (proportion) between the objective sought and the means to attain this objective, between violations of law and penalties established for these violations. These principles do not permit establishing such penalties for violations of law, as well as such sizes of the fines, which would evidently be disproportional (inadequate) to the violation of law and the objective sought” (the Constitutional Court’s ruling of 6 December 2000).

Thus, in the course of the establishment of liability and its implementation, one must sustain a fair balance between the interests of society and those of a person so as to evade unreasonable limitation on the rights of the person. On the basis of this principle, the rights of a person may be limited by law to the extent only necessary for protection of public interests, and there must be a reasonable relation between the adopted measures and the sought legitimate and commonly important objective. To attain this objective, such measures may be established which would be sufficient and which would limit the rights of the person not more than it is necessary.

Under the Code of Administrative Violations of Law, the non-returning of the driving licence until the payment of the fine is a measure of the ensuring of administrative legal proceedings. Assessing the compliance of the impugned provision of Paragraph 4 of Article 269 of the CAVL with the Constitution, one should pay heed to the fact that the norms of the CAVL establishing administrative liability for violations of the Road Traffic Rules provide for fines of varied size, i.e. from 20 till 5000 litas. Under the impugned provision of Paragraph 4 of Article 269 of the CAVL, the driving licence is not returned until the payment of the fine in all cases irrespective of the degree of danger of the violation of the Road Traffic Rules committed by the individual, and of the size of the imposed fine.

It also needs to be noted that under the impugned provision of Paragraph 4 of Article 269 of the CAVL the driving licence is not returned also in the cases when the person may not be deprived of the right to drive a vehicle for the commission of the Road Traffic Rules, while only a fine may be imposed for it.

The right to drive a vehicle is an acquired right. This right is confirmed by the driving licence. The non-returning of the driving licence until the payment of the imposed fine and the issuance of a temporary permit to drive a vehicle mean a restriction on the acquired right as one establishes only a temporary permission to make use of it, meanwhile, the deprivation of the right to drive a vehicle is not imposed as an administrative penalty.

In this ruling of the Constitutional Court it has been held that the non-returning of the driving licence until the payment of the imposed fine virtually means that the person may not make use of the document abroad, certifying that he is entitled to drive a vehicle. A temporary permit to drive a vehicle also means that the implementation of the right to drive a vehicle enjoyed by the person is restricted in Lithuania as such a permit is valid for a certain period only and its validity must be extended regularly.

The administrative measure of ensuring the legal proceedings in legal cases established in the impugned provision of Paragraph 4 of Article 269 of the CAVL is not line with the principle of proportionality, thus, with the constitutional principle of a state under the rule of law as well.

Taking account of the arguments set forth, it should be concluded that the provision of Paragraph 4 of Article 269 of the CAVL that in cases of decisions to impose a fine the driving licence shall not be returned until the payment of the imposed fine conflicts with the principle of a state under the rule of law entrenched in the Constitution.

Conforming to Article 102 of the Constitution of the Republic of Lithuania and Articles 53, 54, 55 and 56 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania gives the following

ruling:

To recognise that the provision of Paragraph 4 of Article 269 of the Code of Administrative Violations of Law of the Republic of Lithuania that in cases of decisions to impose a fine the driving licence shall not be returned until the payment of the imposed fine conflicts with the Constitution of the Republic of Lithuania.

This ruling of the Constitutional Court is final and not subject to appeal.

The ruling is pronounced in the name of the Republic of Lithuania.

Justices of the Constitutional Court:

 

Egidijus Jarašiūnas        Egidijus Kūris       Zigmas Levickis

 

Augustinas Normantas        Vladas Pavilonis        Jonas Prapiestis

 

Vytautas Sinkevičius       Stasys Stačiokas        Teodora Staugaitienė