FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 55741/00 by Anastassios XINTARAS against Sweden

The European Court of Human Rights (F ourth Section) , sitting on 22 June 2004 as a Chamber composed of:

Sir Nicolas Bratza , President , Mr M. Pellonpää , Mr J. Casadevall , Mr S. Pavlovschi , Mr J. Borrego Borrego , Mrs E. Fura-Sandström , Ms L. Mijović, judges , and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application lodged on 10 June 1999,

Having deliberated, decides as follows:

THE FACTS

The applicant is a Swedish and Greek national, who was born in Greece in 1949 and lives in Malmö, Sweden. He is represented before the Court by Mr Broch, a lawyer practising in Gibraltar.

A. The circumstances of the case

The facts of the case, as submitted by the applicant , may be summarised as follows.

Since being granted a traffic licence ( trafiktillstånd ) in September 1992, the applicant has been the owner of a taxi company. On 15 December 1996, during one of his shifts, he was stopped and questioned by the police. It was revealed that he was able to turn off the taxi meter, by means of a switch, while driving and that he had failed to print out a receipt after transport and to keep the taxi rates visible in the window.

On 10 April 1997, the applicant accepted the summary imposition of a fine ( strafföreläggande ) for having violated the Ordinance on Commercial Transport ( yrkestrafikförordningen ) and the Vehicle Proclamation ( fordonskungörelsen ).

Subsequently, in September 1997, the County Administrative Board ( länsstyrelsen -hereinafter “the Board”) of the County of Skåne informed the applicant that the revocation of his traffic licence in accordance with section 15 of the 1988 Act on Commercial Transport ( yrkestrafiklagen, Lag 1988:263, -hereinafter “the 1988 Act”) was being considered.

On 28 October 1997 the Board revoked the applicant’s traffic licence for a period of three years, due to the above-mentioned circumstances and because one of his employees, in March 1997, had not kept a proper driver’s log book and had driven without his taxi-driver’s licence ( taxiförarlegitimation ) being displayed visibly as required. The Board found that section 15 of the 1988 Act was applicable and that the applicant had committed serious mismanagement, for which reasons he no longer fulfilled the conditions for holding a traffic licence.

In November 1997 the applicant appealed against the revocation to the County Administrative Court ( länsrätten ) of the County of Skåne, claiming that neither he nor his employee had committed the violations wilfully but that they were oversights. He further asserted that the switch to the taxi meter had not prompted any objections during a technical control in 1996; it was used to avoid overloading the battery but of course the taxi meter was always turned on when he was on duty. On 4 February 1998 the County Administrative Court rejected his appeal. Besides adhering to the Board’s reasoning, the court added that the preparatory work ( prop. 1993/94:168 ) to the new Act on Commercial Transport (Lag 1998:490) stressed that it was of the utmost importance to suppress cheating with taxi meters which could seriously hamper competition among taxi companies and lead to tax evasion.

The applicant lodged a further appeal with the Administrative Court of Appeal ( kammarrätten ) in Gothenburg which, on 25 March 1998, refused leave to appeal.

He then engaged a lawyer to represent him before the Supreme Administrative Court ( Regeringsrätten ). In his appeal to that court, he submitted that none of the transgressions for which he had been found to be responsible was sufficiently serious, either individually or all taken together, for his licence to be revoked. He further claimed that the Supreme Administrative Court could set an important precedent by establishing the limits of a taxi company owner’s responsibility for his employees.

On 14 December 1998 the Supreme Administrative Court refused leave to appeal.

In April 1999 the applicant made a request to the Supreme Administrative Court to re-open the proceedings, claiming inter alia that his rights under Article 6 of the Convention had been violated in that he had not been informed of his rights and had not been given the opportunity to have an interpreter in Greek present when the police officers stopped and questioned him on 15 December 1996. He further submitted that the technical instruction (VVFS 1994:5), which had been relied on by the police and the Board as a ground for considering the switch on the taxi meter illegal, had not been reported to the Commission of the European Union as required by European Community law and that, therefore, the instruction was void and should not have been invoked against him. The Supreme Administrative Court rejected the request on 9 June 1999.

As from 28 October 1997, when the applicant’s traffic licence was revoked, until the end of 1998 he continued to earn his living as a taxi driver for another taxi company, as his taxi driver’s licence had not been revoked. It appears that as from 1999 he chose not to continue earning his living as a taxi driver and instead had various temporary jobs.

B. Relevant domestic law

The measures at issue in the present case were taken under the 1988 Act, in its version as in force at the relevant time.

According to its section 6, a traffic licence could be granted only to a law-abiding person deemed suitable to run such a business, having regard to his or her professional knowledge, economic means and ability to fulfil his or her obligations towards the public.

Section 14A of the 1988 Act provided that vehicles used as taxis could only be driven by persons holding a special taxi driver’s licence.

According to section 15 of the same Act a traffic licence should be revoked in case of serious mismanagement ( allvarliga missförhÃ¥llanden ) in the commercial transport or otherwise in the running of the business, or if the conditions set out in section 6 are no longer fulfilled. The Ordinance on Commercial Transport, section 11A, provided that the revocation could be ordered for a period of three to five years.

COMPLAINTS

The applicant complains under Article 6 of the Convention that the revocation of his traffic licence was a criminal punishment for which reason he should have been afforded the guarantees applying to criminal proceedings. Notably, he should have been informed of his rights when stopped by the police and offered access to an interpreter in Greek. Relying on Article 6 § 1 and Article 7, he further claims that the technical instruction, invoked as a ground for holding that the switch on the taxi meter was illegal, had not been reported to the Commission of the European Union and, therefore, was void and could not have served as justification for the revocation. Moreover, he argues under Article 4 of Protocol No. 7 to the Convention that he was punished twice for the same offence: first when he accepted the fine and then when his traffic licence was revoked. Finally, he complains under Article 1 of Protocol No. 1 to the Convention that the revocation was disproportionate to the aim of the measure as it deprived him of his livelihood.

THE LAW

1. The applicant first complains that the decision to revoke his traffic licence must be considered a criminal measure for which reason he should have been afforded the guarantees in Article 6 of the Convention applying to criminal proceedings. In particular, he should have been informed of his rights and offered the assistance of an interpreter in Greek. In so far as relevant for the present case, Article 6 reads:

“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law. ...

3. Everyone charged with a criminal offence has the following minimum rights:

(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; ...

(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.”

The Court notes from the outset that the applicant did not raise any of these complaints, either in form or in substance, before the national courts in the main proceedings but only when he requested that the Supreme Administrative Court re-open the case. Such a request was an extraordinary remedy and cannot be taken into consideration when deciding whether domestic remedies have been exhausted.

It follows that this part of the application is inadmissible for non-exhaustion of domestic remedies within the meaning of Article 35 § 1 of the Convention and must be rejected pursuant to Article 35 § 4.

2. The applicant further claims, under Article 6 § 1 and Article 7 of the Convention, that the technical instruction regulating the installation and use of taxi meters, had not been reported to the Commission of the European Union as required and, therefore, were void and could not have served as a justification for the revocation. Article 7 § 1 reads:

“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.

The Court observes that the applicant also failed to raise this complaint, both in form and in substance, before the national courts in the ordinary proceedings. He only invoked this argument when he requested the Supreme Administrative Court to re-open the case and since such a request was an extraordinary remedy, it cannot be taken into consideration when deciding whether domestic remedies have been exhausted.

Thus, the Court finds that this part of the application is also inadmissible for non-exhaustion of domestic remedies within the meaning of Article 35 § 1 of the Convention and must be rejected pursuant to Article 35 § 4.

3. Next, the applicant complains that he was punished twice in violation of Article 4 of Protocol No. 7 in that he first had to pay a fine and then had his traffic licence revoked. In relevant parts, this provision reads:

“1. 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.”

Here again, the Court notes that the applicant did not raise this complaint, either in form or in substance, before the national courts in the main proceedings but only when he requested the Supreme Administrative Court to re-open the case.

Thus, this part of the application too must be rejected as being inadmissible for non-exhaustion of domestic remedies within the meaning of Article 35 §§ 1 and 4 of the Convention.

4. Finally, the applicant complains that Article 1 of Protocol No. 1 to the Convention was violated because the revocation of the licence deprived him of his livelihood and was thus disproportionate to the aim pursued by the national authorities. The provision reads:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

The Court is of the opinion that, in the circumstances of the case, the withdrawal of the applicant’s traffic licence constituted an interference with his right to the “peaceful enjoyment of his possessions”. It did not amount to a deprivation of property in the sense of the second sentence of the first paragraph but rather to such control of the use of property which falls to be considered under the second paragraph (see, for instance, the Tre Traktörer A.B. v. Sweden judgment of 7 July 1989, Series A no. 159, § 55).

As to the further question of whether the measure complied with the requirements of the second paragraph, the Court sees no reason to question the national courts’ assessment of facts and their view that the measure had a legal basis in the provision of section 15 of the 1988 Act, authorising revocation on grounds of “serious mismanagement”. Moreover, as is apparent from the relevant provisions, the possibility to revoke a traffic licence was designed to protect the taxi market from unsuitable taxi companies and to ensure that only those who complied with the relevant rules and regulations could hold a licence. For instance, revocation was a means of stopping irregular practices such as cheating with taxi meters and omitting to print out receipts that could seriously hamper competition among taxi companies and lead to tax evasion.

In the present case the applicant was found responsible for a number of irregularities in the running of his taxi company. Amongst other things, it was revealed that he was able to turn off the taxi meter, by means of a switch, while driving and that he had failed to print out a receipt after transport and to keep the taxi rates visible in the window.

Moreover, one of his employees had failed to keep a proper driver’s log book.

Against this background, the Court is satisfied that the withdrawal of the applicant’s traffic licence was lawful and pursued the general interest. The applicant does not seem to dispute this.

The Court is further unable to accept the applicant’s submission that the impugned interference was disproportionate to the legitimate aims pursued. It cannot but note the seriousness of the irregularities for which he was found responsible and the potentially damaging effects this kind of conduct was considered to have on the taxi market and on the proper functioning of taxi traffic in general.

Although the revocation adversely affected his professional situation, under Swedish law it was considered an administrative measure, not a criminal punishment and must, in the circumstances, have been a foreseeable result of infractions of the relevant national provisions regulating the holding of traffic licences (see, mutatis mutandis , Tre Traktörer A.B. cited above, § 46). The Court further notes that he was nonetheless able to continue working as a taxi driver for other taxi companies as he retained his taxi driver’s licence. He in fact used this opportunity to work as a taxi driver for another company for a period at the end of 1997 and during 1998 and so was not deprived of his livelihood, contrary to what he suggests.

Against this background, and having regard to the wide margin of appreciation enjoyed by the Contracting States (see Tre Traktörer A.B. cited above, § 62), the Court does not find that the present case discloses any indication of failure on the part of the respondent State to strike a fair balance between the individual interests of the applicant and the general interest of Swedish society.

This conclusion is not altered by the applicant’s arguments in relation to several of his other complaints mentioned above, to the effect that the revocation ought to be considered as a “criminal” sanction for the purposes of the Convention.

It follows that this part of the application must be rejected as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

For these reasons, the Court unanimously

Declares the application as a whole inadmissible.

Michael O’Boyle Nicolas BRATZA Registrar President