EHRM, 13-12-2005, nr. 73661/01

‘[The applicant's] driving licence and driving licence permit have been withdrawn in accordance with Chapter 5, sections 2, 3 (1) and 6 of the Driving Licence Act (1998 : 488) on the grounds that he has been convicted of an aggravated offence of drunken driving and of unlawful driving by a legally binding judgment of the district court. The period of suspension has been set at 18 months.

The main issue in this case is whether the withdrawal of [the applicant's] driving licence is in conflict with the principle established under Article 4 § 1 of Protocol No. 7 to the European Convention on Human Rights (‘Article 4 § 1’), according to which no one shall be liable to be tried or punished twice for the same offence (ne bis in idem). [The applicant's] opinion in the matter is that the fact that his driving licence was withdrawn after the decision to convict him of a traffic offence means that he has been punished twice for the same matter.

The European Convention — with the additions made, inter alia, in Protocol No. 7 — has been incorporated into Swedish law by means of SFS 1994:1219.

…

The intended scope of Article 4 § 1 is unclear, as is the principle expressed therein. The wording of the article therefore provides no clear guidance as to whether the Swedish system of driving licence-related measures [körkortsingripande] might come into conflict with the Article. Neither are there many legal precedents in this area.

As to the various requirements set out in the Article, it stipulates, first of all, that no one may be ‘punished’ more than once for an offence. The question here is whether the said withdrawal of the appellant's driving licence represents a punishment within the meaning of the Convention.

Under Swedish law, driving licence-related measures have traditionally been implemented for traffic-safety reasons, that is, they have been regarded as a precautionary measure on the part of society aimed at drivers who jeopardise traffic safety. Hence, measures of this kind have not been regarded as a form of punishment. It is, however, difficult to argue that a decision to withdraw a driving licence because the licence-holder has committed an offence is purely a traffic-safety measure. As a rule, the period of suspension is calculated on a standardised basis in proportion to the seriousness of the offence — in the same way as the penalty. Hence, it is not based on an individual assessment of the likelihood of a repeat of conduct that might jeopardise traffic safety. This means that the decision to withdraw a driving licence — like the punishment for the traffic offence — is aimed at least in part at persuading the holder to respect existing traffic regulations. Over time, the distinction between precautionary measures and punishment has become increasingly unclear in cases of this kind (see for example SOU 1991:39 p. 86, Government Bill 1993/94:133, pp. 44 et seq., Government Bill 1997/98:124, pp. 42 et seq. and SOU 2000:26, pp. 141 et seq.).

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Under Chapter 5, section 3 of the Driving Licence Act, a driving licence is withdrawn if any of eight criteria are met. Three of these criteria apply not to cases in which the licence-holder has committed an offence but to situations in which the holder is to be barred from holding a driving licence on grounds of unreliability as regards sobriety, illness, injury or similar circumstances. It should be made clear that the withdrawal of a driving licence in these cases is not to be considered as a punishment, and that cases of this kind are of no further interest in the present context. However, criteria 1–4 and 6 are of interest, since they refer to cases where it is normally presupposed that the licence-holder has committed an offence. According to some of these criteria (1, 2 and 4) — except in the case of petty violations — a driving licence may be withdrawn simply on the grounds that the holder has committed one of the offences set out therein. This applies in the case of gross negligence when driving and drunken driving (criterion 1), in cases where the driver leaves the scene of an accident (criterion 2) and in the event of a violation of a rule that is essential from the point of view of traffic safety (criterion 4). In other cases (criteria 3 and 6), certain other conditions must be met in addition to an offence having been committed. According to criterion 3, the driving licence is withdrawn if the licence-holder, through repeated offences, has shown a considerable lack of willingness or ability to comply with the regulations that apply in the interests of traffic or traffic safety for drivers of motor vehicles. According to criterion 6, the driving licence is withdrawn if it can be assumed — in the light of another offence which the holder has committed — that he or she will fail to respect traffic regulations or show consideration, judgement or responsibility on the road, or if he or she, on account of other personal circumstances, cannot be considered suitable to be a driver of a vehicle requiring a driving licence.

Under criteria 1, 2 and 4, therefore, a driving licence is withdrawn, in principle, as the direct result of an offence. As regards criteria 3 (repeated offences) and 6 (other offences), however, it is not the criminal act alone, but the act taken in combination with other factors — willingness and ability to comply with existing regulations, to show respect for traffic regulations, judgement and responsibility on the road, or suitability with regard to personal circumstances — which constitutes the grounds for revoking the licence. In the light of the Malige v. France case (judgment of 23 September 1998, Reports of Judgments and Decisions 1998-VII), for example, the withdrawal of a driving licence under criteria 1, 2 or 4 can be said to be closer in character to a punishment than withdrawal under criteria 3 or 6. At the same time, the basic rationale for withdrawal is that a driving licence should be withdrawn if the holder is deemed unsuitable to hold a licence. Hence, the fact that the legislator has singled out certain offences as constituting grounds for withdrawal in their own right, while further criteria must be fulfilled in the case of other offences, does not mean that the act of revoking a driving licence should be characterised in different ways in different cases. A withdrawal under criteria 3 or 6 does not refer to a single offence but to several different offences or other circumstances. However, the same can also apply to withdrawals under criteria 1, 2 and 4. Of greater importance is the fact that the withdrawal is not an automatic consequence of the offence in question in any of these cases. Under Chapter 5, section 9 — and with the exception of certain drunk-driving offences — the licence-holder should be issued instead with a warning, if there are specific reasons to assume that a warning can be regarded as sufficient. Under Chapter 5, section 10, subsection 2, if exceptional circumstances exist which warrant departing from the Act, withdrawal can be avoided or the suspension period reduced if this can be done without jeopardising road safety. If the driving licence is not withdrawn, a warning may be issued instead.

The regulation therefore means that, when examining a case of driving licence-related measures under criteria 1, 2 and 4, other circumstances besides the actual offence need to be taken into account. This applies with regard both to the question of whether any action should be taken and — where applicable — to the question of the scope of such action, e .g. the suspension period. This suggests that, in assessing whether the withdrawal of a driving licence as a consequence of an offence is to be regarded as a punishment or a safety measure, no distinction should be made between the different cases dealt with here (criteria 1–4 and 6) on the basis of the grounds for withdrawal.

Comparison of the Swedish system of driving licence-related measures described above and the system that was assessed in theMalige case reveals a clear difference, in that action under the Swedish system is, in principle, not an automatic consequence of a conviction by the criminal court. However, the Swedish system is also based largely on standard calculations, and driving licence-related measures are consequently to a very great extent directly related to the degree of seriousness of the violation. The fact that a driving licence-related measure, according to Swedish legislation, is not an automatic consequence of a conviction by the criminal court cannot therefore be said to distinguish the Swedish system from the one assessed in the Malige case in any decisive way. In assessing whether the driving licence-related measure is to be regarded as a punishment, account should also be taken of the fact that, under the Swedish system — as with the French system — the action taken may, to a certain degree, be considered to have a punitive and deterrent purpose.

Before determining whether the withdrawal of a driving licence is to be regarded as a punishment, the Escoubet v. Belgium judgment ([GC], no. 26780/95, ECHR 1999-VII) should also be examined. In the Escoubet case, the Court found that the temporary withdrawal of the applicant's driving licence for six days on account of a suspected offence of drunken driving did not concern a criminal charge. Temporary withdrawals can also be effected under Swedish driving-licence legislation. In fact, the legislation stipulates that the withdrawal of a driving licence in connection with an offence is to take place as soon as possible after the offence, and on the basis of a provisional decision. According to Chapter 5, section 7 of the Driving Licence Act, a driving licence should be confiscated by the police or a prosecutor, inter alia, if there is good reason to suppose that the driving licence will be withdrawn under Chapter 5, section 3 (1) or (4). According to Chapter 5, section 5 of the Driving Licence Act, a driving licence is to be withdrawn until further notice pending a final decision on withdrawal, if there is good reason to believe that the driving licence will ultimately be withdrawn on any of the grounds set forth in Chapter 5, section 3 (1) to (7).

In the present case, the Supreme Administrative Court is not called upon to determine to what extent a provisional decision regarding a driving licence-related measure represents a punishment or a safety measure. However, the fact that cases could arise under the Swedish system which should be dealt with in the same way as the Escoubet case in the above-mentioned respect should not affect the assessment of how to characterise the final withdrawal of a driving licence.

In view of this, the Supreme Administrative Court finds that the withdrawal of a driving licence in the cases referred to under criteria 1–4 and 6 should be regarded as a punishment within the meaning of Article 4 § 1.

As is clear from the above, the fact that someone is punished again for an offence does not constitute sufficient grounds for the application of Article 4 § 1. Other conditions must also be met; for instance, the penalty must have been imposed (or the case have been conducted) in the context of ‘criminal proceedings’ and the person in question must already have been ‘finally acquitted or convicted in accordance with the law and penal procedure of that State’.

First, as regards the term ‘criminal proceedings’ (French ‘pénalement’), it would seem most logical at first sight to consider as criminal proceedings any proceedings which could lead to a sanction constituting a punishment.

However, it is questionable whether such a far-reaching interpretation of Article 4 § 1 is intended. To begin with, it appears strange — if the above-mentioned interpretation were intended — to have included the term ‘criminal proceedings’ at all in the provision ; its inclusion suggests that a limitation of its scope was intended (see Johan Munck, Tidskrift för Sveriges Domareforbund (Journal of the Swedish Society of Judges), no.1/2000, p . 18). It should be recalled at this point that the court, in proceedings concerning driving licence-related measures implemented for a traffic offence, makes no fresh examination of the offence. In other words, these are not criminal proceedings in the sense that the actual offence is examined. This suggests that the term ‘criminal proceedings’ should be reserved for proceedings of the latter kind, that is, proceedings in which the offence is examined.

Of interest in this context is the Explanatory Report to Protocol No. 7, paragraph 32 of which states:

It is therefore clear that disciplinary action, for instance against government officials, can fall outside the scope of Article 4 § 1. However, the report does not provide any clear guidance on the question of how to distinguish between ‘criminal proceedings’ and proceedings occasioned by an offence and which involve a sanction, but which nevertheless fall outside the scope of Article 4 § 1. It should be stressed that the fact that disciplinary action is mentioned does not necessarily conflict with the view that legal proceedings are to be seen as criminal proceedings as soon as the sanction constitutes a punishment since, according to the case-law of the European Court of Human Rights, depending on the circumstances, disciplinary action can fall outside what is to be considered as a punishment for the purposes of Article 6. At the same time, it should be noted that the report does not present any obstacles to an interpretation to the effect that the Swedish procedure concerning driving licence related measures falls outside the scope of Article 4 § 1 as an ‘action of a different character’.

As to the condition that the person in question must already have been ‘finally acquitted or convicted in accordance with the law and penal procedure of that State’ the following should be emphasised. The Explanatory Report (paragraph 29 compared with paragraph 22) makes it clear that this means first and foremost that there must be a legally binding judgment on the matter. Looking at the wording of the Article, however, it would seem logical to conclude that — in cases where the legislation in a country prescribes that an offence gives rise to sanctions under two separate procedures — the person in question is finally convicted in accordance with national legislation only when both procedures have been completed.

Hence, in this respect too, the provisions leave room for different interpretations (see also the Supreme Court judgment of 29 November 2000 in case no. B 868–99).

As regards the European Court's position on these issues, the above-mentioned Malige case, inter alia, is of some interest. First, it should be pointed out that the action brought by Malige was based on the fact that the system of automatic deduction of points — which did not allow him as a licence-holder to appeal to a court of law — had deprived him of his right of access to a court of law under Article 6 § 1. As mentioned, the Court found that the case did concern a criminal charge — and also a punishment — and that Article 6 § 1 was applicable. It is of particular interest in this context that the Court found that the conditions laid down by Article 6 § 1 had been met by the judicial review which preceded the conviction by the court and that the Convention could not be considered to require a further examination by a court regarding the deduction of points. There was no statement to the effect that the French system — with its partly separate systems for ordinary penalties and driving licence-related measures — might be incompatible with Article 4 § 1. Also of interest is the European Court's decision on admissibility of 30 May 2000 in R.T. v. Switzerland (application no. 31982/96). The applicant (R .T.) had, in connection with a drunk-driving offence, first had his driving licence withdrawn by an administrative authority and then been sentenced to prison and a fine by another authority. After R.T. lodged an appeal against the decision to withdraw his licence, the decision was confirmed by an administrative court. The Court found that there had been no repetition of criminal proceedings in breach of Article 4 § 1, and stressed, inter alia, that the various sanctions — imprisonment, a fine and withdrawal of the applicant's driving licence — were envisaged by the national legislation.

The withdrawal of a driving licence for a criminal offence should be regarded as a punishment within the meaning of Article 4 § 1 [of the Protocol]. Neither the wording of the provision nor the Explanatory Report gives any clear answer to the question whether Swedish proceedings relating to the withdrawal of a driving licence are covered by the expression ‘criminal proceedings’. Nor does it give a clear indication as to whether the holder of the driving licence should be regarded as having already been ‘finally … convicted’ of the traffic offence by virtue of a legally enforceable judgment by an ordinary court. In the Supreme Court's view, the wording of both expressions suggests that both questions ought to be answered in the negative.

In interpreting this Article, one might also have regard to its purpose. It could be argued that an important safeguard for a person who is finally acquitted or convicted is that he or she should feel secure, in the sense that he or she should not be charged or punished again for the same offence. The Swedish system implies that a person who is charged with a traffic offence is aware — or ought to be aware — from the outset that an enforceable judgment convicting him or her would normally be followed by measures with regard to his or her driving licence. The fact that the measure is taken in separate proceedings should not mean that considerations of security and legal safeguards are set aside. In other words, the Swedish system does not appear to conflict with the purpose of Article 4 § 1.

A strong argument for considering that the Swedish system of withdrawal of a person's driving licence for a traffic offence does not conflict with Article 4 § 1 may be found in the Court's judgment in Malige v. France and the above-mentioned admissibility decision in R.T. v. Switzerland. The European Court's reasoning and conclusion in these cases — notwithstanding the fact that Malige did not directly concern the application of Article 4 § 1 — can only be interpreted to mean that the committing of a criminal offence can lead to different sanctions imposed by separate authorities and courts, if so provided by statute.

Against this background, the Supreme Administrative Court concludes that Article 4 § 1 does not constitute an obstacle to applying the provisions of the Driving Licence Act.

Like the lower courts, the Supreme Administrative Court finds that Chapter 30, Article 9 (1) of the Code of Judicial Procedure — on which [the applicant] also relies — is not applicable to driving-licence cases.’

‘No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.’