Rules for suspending driving licences K 24/15
The imposition of two different sanctions (a temporary suspension of a driving licence and a fine) for the same offence (i.e. speeding more than 50kph over the speed limit in an urban area), within the scope of two different types of proceedings (criminal and administrative proceedings), does not infringe the principle that the same case may not be determined twice.
‘The challenged provisions are unconstitutional, insofar as they do not provide for situations that justify driving a vehicle more than 50kph over the speed limit in an urban area in an emergency,’ stated the Constitutional Tribunal.
On 11 October 2016 at 1 p.m., the Constitutional Tribunal considered joined applications filed by the Ombudsman and the Public Prosecutor-General with regard to rules for suspending a driving licence.
The Constitutional Tribunal adjudicated that Article 102(1)(4) and Article 102(1c) of the Act of 5 January 2011 on Vehicle Drivers in conjunction with Article 135(1)(1a)(a) of the Act of 20 June 1997 – the Law on the Road Traffic:
a) insofar as it provides for imposing an administrative sanction in the form of a suspension of a driving licence as well as for criminal-law liability for the same prohibited act committed by the same person, is consistent with Article 2 of the Constitution and Article 4(1) of Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms, done at Strasbourg on 22 November 1984 and Article 14(7) of the International Covenant on Civil and Political Rights (ICCPR), open for signature in New York on 19 December 1966.
b) insofar as it does not provide for situations that justify driving a vehicle more than 50kph over the speed limit in an urban area in an emergency, is inconsistent with Article 2 and Article 45(1) of the Constitution.
Moreover, the Constitutional Tribunal decided to discontinue the review proceedings within the scope concerning the application of the Public Prosecutor-General, as a result of the withdrawal of the application by that state authority, as well as within the remaining scope.
The ruling was determined by a majority of votes. A dissenting opinion pertaining to the judgment was filed by Judge Julia Przyłębska.
The applicants argued that the challenged provisions infringe the principle of ne bis in idem, which prohibits administering a penalty twice in the same case, as they provide for imposing, within the scope of two different types of proceedings (criminal and administrative proceedings), for the same prohibited act (speeding more than 50 kph in an urban area), two different sanctions (a temporary suspension of a driving licence and a fine).
However, the Constitutional Tribunal stated that the principle of ne bis in idem had not been infringed, as the suspension of a driving licence in that respect is not a criminal sanction, but an administrative one. The said suspension is mentioned in the provisions of administrative law as a sanction for an infringement of an administrative prohibition setting the maximum speed limit for driving a motorised vehicle in an urban area. Above all, the suspension of a driving licence is meant as a preventive measure. It is a deterrent for vehicle drivers, meant to discourage them from excessive speeding. This is a characteristic of an administrative sanction, which does not constitute an adequate reaction to a committed prohibited act, but is a measure intended to ensure the implementation of executive and managerial tasks of administrative authorities. The punitive character of that sanction is determined neither by the degree to which it is burdensome, which is a relative category contingent on the situation of a given person, nor by its similarity to a punitive measure such as a temporary prohibition against driving motorised vehicles. Indeed, the same sanction may be administered within the scope of various systems of liability.
The other allegation raised by the applicants concerned the lack of proper procedural guarantees in the event of the suspension of a driving licence by a decision issued by the governor of a poviat (a unit of the administrative division of the territory of Poland) for speeding more than 50 kph over the speed limit. It was argued that there were no legal possibilities of taking account of subjective elements within the scope of a procedure devised in such a way, e.g. the degree of fault, a detriment to society, and the circumstances of a case.
In the view of the Tribunal, such circumstances do not justify excessive speeding over the maximum speed limit for motorised vehicles in an urban area. The applicants also noted the possibility of errors in speed measurement and hence the risk of suspending a driving licence in a situation where there was actually no violation of the speed limit.
However, the Constitutional Tribunal stated that such circumstances should be mentioned and considered within the scope of administrative proceedings. Both the stage of issuing a decision by the governor of a poviat, as well as the stage of a review conducted by the Local Self-Government Appellate Committee, and subsequently at the stage of proceedings in an administrative court, there is a possibility of raising, verifying and potentially taking account of an allegation about an error in speed measurement. The proof of an error in speed measurement may also be conducted in proceedings before a criminal court, which may result in acquitting a person accused of the alleged misdemeanour of speeding. This in turn makes it possible to reopen administrative proceedings concluded by a final decision on the suspension of a driving licence, since the finding that there was an error in speed measurement constitutes a new actual circumstance that may be of significance for that case.
The non-conformity to the Constitution was adjudicated in the present case only insofar as the challenged provisions do not provide for situations that justify driving a vehicle more than 50kph over the speed limit in an urban area in an emergency. The Constitutional Tribunal ruled that, within that scope, the said provisions are inconsistent with Article 2 and Article 45(1) of the Constitution. Indeed, the Act lacks an explicit indication that a driving licence will not be suspended if a person driving a motorised vehicle over the speed limit in an urban area does so to prevent or minimise a direct threat to a legally protected interest, where the threat may not be avoided in any other way, and road safety sacrificed in such a situation does not represent a manifestly greater value than the threatened interest. In administrative law – similarly to criminal law and law concerning misdemeanours – account should be taken of the conflicts of interests and values which justify the individual’s failure to adhere to requirements and prohibitions set out in legal provisions, the breach of which is penalised by law. However, an emergency referred to herein may neither be construed broadly nor be regarded as tantamount to “particularly justified cases”.
The suspension of a driving licence for speeding more than 50 kph over the speed limit in an urban area is a measure aimed at improving road safety, and consequently enhancing the protection of lives and health of participants in the traffic. This means that an emergency that justifies a departure from the suspension of a driving licence, in the case of a person driving excessively over the speed limit, should be restricted by the legislator only to a situation where the said speeding is justified by the need to save life and protect health. A threat to the life and health of a driver, a passenger or any other person must be direct and immediate, i.e. it must actually exist while the driver is speeding. An authority that applies the administrative sanction in the form of the suspension of a driving licence, as well as the authority that reviews the validity of such a decision, should have a legal possibility of considering all circumstances that characterise an emergency; where the authorities find that the circumstances have occurred, they should have a possibility of departing from the imposition of the sanction, providing reasons for such a decision.
The hearing was presided over by Judge Julia Przyłębska, and the Judge Rapporteur was the Vice-President of the Tribunal, Judge Stanisław Biernat.