FIFTH SECTION
 
 
 
 
 
 
CASE OF KANGERS v. LATVIA
 
(Application no. 35726/10)
 
 
 
 
 
 
 
JUDGMENT
 
 
STRASBOURG
 
14 March 2019
 
 
 
FINAL
 
09/09/2019
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Kangers v. Latvia,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
 Angelika Nußberger, President,
 Ganna Yudkivska,
 André Potocki,
 Síofra O’Leary,
 Mārtiņš Mits,
 Gabriele Kucsko-Stadlmayer,
 Lado Chanturia, judges,
and Claudia Westerdiek, Section Registrar,
Having deliberated in private on 5 February 2019,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 35726/10) against the Republic of Latvia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Latvian national, Mr Jānis Kangers (“the applicant”), on 2 June 2010. 2. The applicant was represented by Mr A. Zvejsalnieks, a lawyer practising in Riga. The Latvian Government (“the Government”) were represented by their Agent, Ms K. Līce. 3. The 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 § 2 of the Convention. 4. On 17 November 2015 notice of the complaint under Article 6 § 2 of the Convention was given to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1983 and lives in Jūrmala. A. First set of administrative offence proceedings
6. On 20 November 2008 the police drew up an administrative offence report (administratīvā pārkāpuma protokols) stating that the applicant had violated Article 14915(4) of the Code of Administrative Offences (Latvijas Administratīvo pārkāpumu 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. 7. On 1 December 2008 the Jūrmala City Court (Jūrmalas pilsētas tiesa) terminated the administrative offence proceedings, as it had failed to establish corpus delicti. This decision took effect on 5 January 2009, and the applicant’s driving licence card was returned to him. 8. On 10 February 2009 a prosecutor lodged an appeal (apelācijas protests) against the decision of 1 December 2008. The Riga Regional Court (Rīgas apgabaltiesa) instituted appeal proceedings. On 23 February 2009 the applicant received notice of the hearing, which was 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’s absence. 9. By a judgment of 27 February 2009 the Riga Regional Court quashed the decision of 1 December 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’ administrative detention; a fine of 500 lats (LVL – 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 March 2009 when its text was finalised. 10. The applicant complained to the Ministry of Justice that a final court decision had been quashed. On 26 March 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 were no time-limits for doing so. 11. On 25 March 2009 the applicant requested that the execution of the judgment of 27 February 2009 be suspended. By a final decision of 28 April 2009 the Riga Regional Court dismissed that request. B. Second set of administrative offence proceedings
12. On 31 July 2009 the police drew up an administrative offence report stating, inter alia, that the applicant had driven a car while disqualified, in violation of Article 1494(6) of the Code of Administrative Offences (hereinafter “the initial offence”). On 1 September 2009 a fine of LVL 250 (approximately EUR 343) was imposed on him. On 7 October 2009 that decision was upheld by the State Police. 13. On 19 October 2009 the applicant lodged an appeal with the administrative courts. He argued that on 1 December 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. 14. On 20 December 2010 the Administrative District Court (Administratīvā 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 February 2009 revoking his right to drive vehicles had taken effect and was binding. Thus, on 31 July 2009 the applicant had driven a car even though his licence had been revoked. 15. The applicant appealed before the Administrative Regional Court (Administratīvā 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 prosecutors in the exercise of their right to lodge an appeal. Hence, in the applicant’s 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 February 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. C. Third set of administrative offence proceedings
16. On 23 September 2009 the police drew up an administrative offence report stating that the applicant had driven a car while disqualified and that the offence had been committed repeatedly within a year, in violation of Article 1494(7) of the Code of Administrative Offences (hereinafter “the repeat offence”). The applicant lodged an appeal. 17. On 6 November 2009 the Riga City Zemgale District Court (Rīgas pilsētas Zemgales priekšpilsētas 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 February 2009 (see paragraph 9 above) and the administrative offence report of 31 July 2009 (see paragraph 12 above). The court imposed a penalty of five days’ administrative detention and a fine of LVL 400 (approximately EUR 549). 18. The applicant appealed against this judgment arguing (i) that the judgment of 27 February 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 them until the conclusion of the administrative offence proceedings concerning the initial offence. 19. On 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’s 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 offence under consideration being classified as a repeat offence and the proceedings being concluded while that appeal was still pending. 20. On 2 June 2010, when the applicant lodged his application with the Court, he submitted that he had already served the sentence of five day’s administrative detention and had already paid the fine imposed in the third set of administrative offence proceedings. The Government did not contest this allegation. II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Code of Administrative Offences
21. Article 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 permilles (0.15%). The penalty for this offence (if the vehicle driven was a car) at the pertinent time was administrative 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 293 of the Code, the driving ban also resulted in a ban on obtaining a licence to operate recreational crafts. 22. Article 1494(6) of the Code provides that a person is to be held administratively liable for driving without a licence or while disqualified. At the relevant time the fine for this offence ranged from LVL 200 to 300 (approximately EUR 274 to 411). 23. Under Article 1494(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 549). 24. Article 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’s 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 had twenty days to lodge an appeal. 25. Article 283 of the Code at the relevant time provided that the lodging of an appeal, including a prosecutor’s appeal, suspended the execution of the decision until the adjudication of the case. The provision contained some exceptions, including with regard to decisions concerning driving disqualifications. B. Administrative Procedure Law
26. Section 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 effect of that administrative 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. C. Case-law of the Supreme Court
27. In relation to the domestic case-law concerning repeat administrative offences the Government submitted a judgment of 28 February 2008 delivered by the Administrative Department of the Senate of the Supreme Court (Augstākās tiesas Senāta Administratīvo lietu departaments) in a dispute between a limited liability company and the State Revenue Service. The case concerned a fine of LVL 100 (approximately EUR 137) for the repeat administrative offence of declaring goods under a false name. In its relevant part the judgment reads:
“[8] ... an administrative penalty is considered to be imposed from the moment the decision on administrative penalty takes effect.
[9] An institution’s ... decision in an administrative offence case ... is an administrative decision. Accordingly, ... it takes effect at the moment it is served on the addressee.
[10] Even though an institution’s decision on administrative penalty takes effect at the moment it is served on the addressee, ... it is amenable to administrative or judicial appeal. 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.
... 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 a decision 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.
[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.
[12] Article 283 of the Code of Administrative Offences provides that the lodging of an appeal suspends the execution of the decision ... 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.
[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 conclusion the 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 ...
[14] It follows that Article 283 of the Code of Administrative Offences is lex specialis in 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 ... 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.
...
[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. However, the Administrative Regional Court has drawn an unfounded conclusion that a person cannot be sanctioned under 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 ... Thus, the fact whether the first decision is or is not being appealed against in itself cannot be used as a criterion to determine whether the person has been administratively sanctioned. 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. 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 resolution of the second case. 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’s 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’s decision that had formed the basis of the decision in the administrative proceedings has been set aside]. 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.
[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’s 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.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE CONVENTION
28. The 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 § 2 of the Convention, which reads as follows:
“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”
29. The Government contested that argument. A. Admissibility
1. Exhaustion of domestic remedies
30. The 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 proceedings concerning the repeat offence into question, the applicant would have had access to an effective remedy – he could have requested new adjudication of the case on the basis of a change in factual circumstances. 31. The applicant disagreed that he should have had to await the final decision in the second set of proceedings. The essence of his complaint concerned the decision taken in the third set of proceedings concerning the repeated nature of the offence, and he had availed himself of every opportunity to appeal in relation to that decision. 32. The Court reiterates that the only remedies that Article 35 § 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, § 151, 22 April 2010). According to the applicant, the violation of Article 6 § 2 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. 33. The 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’s 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. Greece, no. 53466/07, § 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. 2. Victim status
34. The Government argued that the applicant could no longer claim to be a victim of a violation of Article 6 § 2 of the Convention, as the second set of administrative offence proceedings had been duly concluded and he had been found guilty of driving while disqualified. 35. The applicant emphasised that the punishment in the third set of proceedings had been imposed before the conclusion of the second set of proceedings, even though the initial offence had been an integral element of the composition of the repeat offence. Thus, regardless of the outcome in the second set of proceedings, the third set of proceedings had been unfair, as he had not been given an adequate opportunity to defend himself. 36. The Court has held that an ultimate finding of guilt cannot negate the applicant’s initial right to be presumed innocent until proved guilty according to law (see Matijašević v. Serbia, no. 23037/04, § 49, ECHR 2006‑X, compare also Mokhov v. Russia, no. 28245/04, § 32, 4 March 2010 and Kolomenskiy v. Russia, no. 27297/07, § 107, 13 December 2016). Accordingly, the subsequent finding that the applicant had committed the chronologically earlier offence has no bearing on his victim status in relation to his complaint that he had been presumed guilty before his guilt had been determined by a final decision. 3. Significant disadvantage
37. The Government argued that the applicant had not suffered a significant disadvantage, as the alleged violation of his rights had not attained the minimum level of severity warranting consideration by an international court. The case concerned a prima facie justified presumption of fact and law, which in principle was not prohibited by the Convention, and there were appropriate safeguards to remedy a presumption that had later lost its basis. Furthermore, the fact that the second set of administrative offence proceedings concerning the initial offence was still pending was explicitly addressed by the courts in the third set of proceedings where the finding concerning the repeated nature of the offence was made. Thus the issue currently put before the Court had been properly considered by a domestic tribunal. 38. The applicant provided no submissions in relation to this objection. 39. The main element of the criterion set by Article 35 § 3 (b) of the Convention is whether the applicant has suffered any significant disadvantage (see Korolev v. Russia (dec.), no. 25551/05, ECHR 2010). The presumption of innocence is one of the elements of a fair criminal trial and, as a procedural right, serves mainly to guarantee the rights of the defence and at the same time helps to preserve the honour and dignity of the accused (see Tsvetkova and Others v. Russia, nos. 54381/08 and 5 others, § 192, 10 April 2018). Assuming that it finds a violation, the breach of that right entails an unjustified designation of the applicant as being guilty of an offence and thus has a serious impact on the applicant’s personal reputation, as well as on the fairness of the proceedings pending against him (see El Kaada v. Germany, no. 2130/10, § 42, 12 November 2015, and Diacenco v. Romania, no. 124/04, § 46, 7 February 2012). 40. The Court adds that the practical effects of the applicant being found guilty of a repeat offence rather than of simply driving while disqualified cannot be regarded as insignificant. With this more serious classification of the offence the applicant was not only given a higher fine but also a custodial sentence of five days. 41. In view of the foregoing, the Court concludes that the applicant cannot be deemed not to have suffered a significant disadvantage for the purposes of Article 35 § 3 (b) of the Convention. 4. Conclusion
42. Accordingly, the Court dismisses the Government’s aforementioned objections. The Court further notes that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention, nor is it inadmissible on any other grounds. It must therefore be declared admissible. B. Merits
1. The parties’ submissions
43. The applicant argued that the quashing of the final decision of 1 December 2008 in the first set of administrative offence proceedings had contravened the principle of legal certainty. Hence, on 31 July 2009, when the record of the administrative offence of driving while disqualified in the second set of proceedings had been drawn up, he had had his driving licence. The appeal in relation to that decision had still been pending when he had been found guilty of repeated commission of the same offence within a year. 44. The repetitiveness had been one of the constitutive elements of the offence of which he had been found guilty in the third set of administrative offence proceedings. As he had not been found guilty of the initial violation, there had been no grounds to consider that the same violation had been committed repeatedly. A person could not be punished on the basis of assumptions. Imposing a penalty for the repeat offence before the final ruling concerning the initial offence had taken effect had been contrary to the presumption of innocence. 45. The Government argued that the applicant’s complaint was in large part based on his objections against the first set of administrative offence proceedings. They emphasised that the decision of 1 December 2008 discontinuing the administrative offence proceedings had been quashed and that the judgment of 27 February 2009 revoking the applicant’s driving licence had taken effect. The domestic courts in the second and third set of administrative offence proceedings had been bound by this latter judgment. 46. Furthermore, relying on Falk v. the Netherlands ((dec.), no. 66273/01, 19 October 2004) the Government submitted that a person’s right to be presumed innocent was not absolute. Presumptions of fact and law operated in every criminal-law system and were not prohibited in principle by the Convention, as long as the States remained within reasonable limits, taking into account the importance of what was at stake and maintaining the rights of the defence. 47. The Government further argued that the third set of administrative offence proceedings concerning the repeated nature of the offence had been based on the first set of proceedings revoking the applicant’s driving licence and the second set of proceedings, in which the competent authorities had already established that the applicant had driven while disqualified. The domestic courts in the third set of proceedings had also directly addressed the issue of whether they could proceed while the second set of proceedings was still pending. Relying on established case-law of the Supreme Court, they ruled that the presumption of fact was reasonable. The Government argued that the domestic authorities had not overstepped the reasonable limits, considering that in the course of the second set of proceedings the outcome of the first set of proceedings could not be altered. On the contrary, the domestic authorities had emphasised that the judgment of 27 February 2009 had taken effect and had the force of law. 2. The Court’s assesment
(a)  The scope of the case
48.

Outcome for Article 41: violation