INSIGHT INTO THE INNOVATION OF THE LATVIAN CRIMINAL LAW IN THE FIELD OF ROAD TRAFFIC
A short time ago, a widely discussed topic in the media was a new introduction to the law, which allowed the confiscation of vehicles driven by drunk drivers (https://juristavards.lv/zinas/282219-par-brauksanu-alkohola-reibuma-noteikta-kriminalatbildiba/).
This relates to the Law of 27 October 2022, “Amendments to the Criminal Law” (the Law), which, among other things, amends the Criminal Law in matters of criminal liability and road traffic safety (Articles 262 and 262.1). In particular, it is a specific offence under the Criminal Code to drive under the influence of alcohol (if the blood alcohol concentration found in the air exhaled or the blood test exceeds 1.5 per mille). This new law gained significant attention because it provides not only for the imposition of a penalty on the perpetrator but also for confiscating the vehicle belonging to the offender (https://likumi.lv/ta/id/337127-grozijumi-kriminallikuma).
For the sake of accuracy, it should be noted that within the meaning of the Criminal Law, the confiscation of a vehicle is not a criminal punishment, but a criminal law means of coercive influence – the confiscation of special property. Its application arises from the need not to leave property related to the criminal offence at the disposal of the violator.
It should also be noted that such confiscation is not a novelty in Latvia: namely, before the new amendments came into legal force, the Criminal Law provided for the possibility to subject to confiscation a vehicle belonging to a person who has committed a criminal offence, if a criminal offence against traffic safety has been committed under the influence of alcohol, narcotic, psychotropic, toxic or other intoxicating substances. Thus, the Act, in contrast to previous legislation, establishes the confiscation of a vehicle as a mandatory criminal law means of coercive influence.
According to state police representatives, 3,500 drunk drivers are caught by police each year and given the amount of police resources, the chance of being caught is very high. In addition, most of these were driving with a blood alcohol concentration of more than 1.5 millilitres, and a fifth have done so repeatedly in recent years (https://zinas.tv3.lv/auto/satiksme/dzerajsoferu-apkarosana-policija-cer-ka-auto-konfiskacija-bus-efektivs-sods/).
There is no doubt that the Act was passed for purposes of significance to the public. In particular, by reducing the need for using means of coercive influence, in particular the special confiscation of a vehicle, it is hoped to discourage persons from driving under the influence of alcohol and thus contribute to road traffic safety and reduce the number of drunk-driving accidents in Latvia. In other words, to protect the public from the dangers of drunk driving, inter alia by removing property with which the offence was committed.
By the end of 2022, during the period after the entry into force of the Law, more than 80 criminal proceedings had been initiated for the said offence (https://www.lsm.lv/raksts/zinas/latvija/dzerajsoferiem-konfiscetos-auto-par-augstako-cenu-realize-vid.a489336/).
In connection with these criminal cases, the prosecution's office states that in the case of drunk drivers, they are often behind the wheel of cars they don't own at all (https://www.lsm.lv/raksts/zinas/latvija/dzerajsoferiem-konfiscetos-auto-par-augstako-cenu-realize-vid.a489336/).
It is very likely that it was precisely because of these circumstances that the public were to a certain extent and for different reasons animated by a rather perceptible dissatisfaction with the Law – its unjust nature towards third parties, in particular, quite noticeably allowing the interests of public safety to be overshadowed by property rights’ interests.
In connection with this question, it should be noted that, perhaps because of the “loud” and attention-seeking content of the main purpose of the Act, due attention has not been paid to the remedy of third parties introduced by the Act, namely, Criminal Law 70. Section 14, which deals with resolving issues related to the replacement of confiscated property, has been supplemented by a new Part 1.1, providing that section 262 or 262 of the Criminal Code has been committed. If the offence provided for in Article 1 is committed with a vehicle belonging to another person, the value of that vehicle, in whole or in part, shall be recovered from the person who committed the offence. It is not for nothing that in response to the dissatisfaction expressed related to protecting the interests of third parties, the Chief Prosecutor of the Criminal Justice Department of the Prosecutor General’s Office Arvīds Kalniņš expressed a rather clear view that “if the vehicle does not belong to a person who has been driving under the influence of alcohol, then this confiscation should be replaced by a corresponding amount of money to the value or partial value of the vehicle.” (Latvia Chief Prosecutor of the Criminal Justice Department of the Prosecutor General’s Office Arvīds Kalniņš, https://www.lsm.lv/raksts/zinas/latvija/dzerajsoferiem-konfiscetos-auto-par-augstako-cenu-realize-vid.a489336/)
Time will tell how the interpretation and practice of applying the Law, including the realisation of third-party property rights, will develop. In particular, it is possible that when assessing the substitution of confiscation with recovery of the partial value of a vehicle, directly in the field of public safety in road traffic within the target scope, the interpretation will be based on the Civil Code’s guidelines on the liability of the owner of a source of increased danger.
In this regard, attention should be drawn to the fact that in neighbouring countries – Lithuania and Estonia – a similar legal framework to that introduced by the Law has been applied for several years. In particular, legal practice has developed during the time it has been applied, promoting the public interest in road traffic and respecting the property rights of third parties.
In order to provide an idea of the existing legal framework in Lithuania and Estonia, and the practice of its application, Sorainen sworn advocates in Lithuania and Estonia have provided a brief insight into these issues, which could potentially contribute to the development of Latvian legal practice.
INSIGHTS INTO LITHUANIAN LAW AND ITS APPLICATION PRACTICES
In Lithuania, driving while intoxicated entails administrative liability, and from April 2019 it entails criminal liability too.
Criminal liability in Lithuania is provided for those who: (1) were driving a motor vehicle, tractor or self-propelled machine or were teaching practical driving while intoxicated, and were found to have a blood alcohol concentration level of 1.51 per mille or higher; (2) refused a sobriety test when signs of intoxication were detected; (3) consumed alcohol after a traffic accident before the circumstances of the accident were determined, and were found to have a blood alcohol concentration level of 1.51 per mille or higher. The sanction is a fine or arrest or imprisonment for up to one year.
In April–December 2019, a total of 3,574 such acts were registered in Lithuania; in 2020 the total was 4,548; in 2021, 4,316; and in 2022, 4,141.
In Lithuania, statistically, the majority of persons who were driving while intoxicated and were found to have a blood alcohol concentration level of 1.51 per mille or higher are released from criminal liability, and the criminal case against them is terminated. In such cases, the right to drive the vehicle is simply revoked and the vehicle is confiscated, or its value is recovered. In addition, other punitive measures may be imposed, for example, contributions to the Victims of Crime Fund may be imposed.
In such situations, the value of the vehicle is recovered in cases where the intoxicated driver is not the owner of the vehicle. The court evaluates the value of the vehicle at the time of the crime, but the mere fact that the vehicle’s value is high does not constitute grounds for reducing it. The courts reason that the criminal sanctions applied to the perpetrator are inevitably associated with certain restraints and restrictions, which are specified in the laws prohibiting certain acts and providing for corresponding sanctions. By violating the prohibitions established by law, such a person assumes the risk of his illegal actions and the resulting negative consequences for which they are solely responsible.
In each case, the court evaluates the circumstances of the crime, the level of intoxication of the accused, their personality and their financial situation, so the results can vary greatly. For example, in one case, it was determined that the accused, who was found to have a blood alcohol concentration level of 2.22, was working as an engineer, and the courts stated that the amount of money corresponding to the value of the vehicle – EUR 2,660 – was not disproportionate. Therefore, this amount was recovered in full.
However, there are examples in court practice where the amount has been reduced due to taking into account the principles of proportionality and justice. In another case, it was established that the accused, who was found to have a blood alcohol concentration level of 3.54 per mille, had no job and lived with her mother off her pension, so it was decided that there was a basis for reducing the amount of money corresponding to the value of the vehicle. The amount of money corresponding to the value of the confiscated vehicle was reduced from EUR 3,970 to EUR 1,000.
There is also one case regarding driving while intoxicated which is unique in the decision reached. In this case, it was established that the intoxicated driver was driving a vehicle that actually belonged to the leasing company, as the leasing relationship between the accused and the leasing company had not yet ended. The court considered that in such a case the accused is only using the vehicle, so there is no possibility of confiscating the vehicle, as it belongs to a third party. The prosecutor asked to recover from the accused the entire amount of money corresponding to the vehicle's value, while the defendant’s attorney expressed doubts as to whether the recovery of the value of the entire vehicle would be proportionate and fair, since the accused would still have to pay instalments to be able to continue driving the vehicle. However, the defendant’s attorney requested that, in case the court decided to impose confiscation on the defendant’s vehicle, the value of the vehicle to be paid instead of confiscation should be linked not to the market value, but instead to the value of the payments made under the leasing contract of the vehicle.
The court made a decision to recover not the amount of money corresponding to the value of the vehicle (EUR 21,780), but the amount paid to the leasing company for the vehicle (EUR 8,581.01).
In addition, publications in which Lithuania’s residents shared their opinions regarding the recovery of the value of the vehicle as a penalty for intoxicated drivers received a lot attention in the Lithuanian media. Residents said that such an arrangement seemed wrong, and even that it should be changed because people driving low-value vehicles would only be encouraged to commit a crime since the loss due to such a violation would not be as great as for a person who drives a more expensive vehicle. This position was publicly supported by a judge from the District Court of the city of Vilnius, who agreed that an intoxicated driver behind the wheel of a luxury vehicle is likely to suffer a greater loss than one who committed the same violation while behind the wheel of a vehicle of lesser value. The judge indicated that, however, if there were two persons, one of whom was driving a luxury vehicle and the other of whom was driving a vehicle worth only a couple hundred euros, both would suffer the consequences, but the one who was driving a less luxurious car would arguably suffer less damage: one would lose a vehicle worth perhaps 400 euros, while the other would lose a vehicle worth 20,000 euros or at least part of the value of the vehicle which may still be several times higher than the total amount paid by the driver of the lower value vehicle.
INSIGHTS INTO ESTONIAN LAW AND ITS APPLICATION PRACTICES
In Estonia, as in other Baltic countries, drunk driving has been a problem for decades. In addition to the implementation of traffic safety measures, the penalties for driving while intoxicated have also been constantly tightened, and since 2008 it has been a criminal offence to drive a vehicle with a blood alcohol concentration of more than 1.5 per mille. Before that, it was only a crime if a person had been caught driving a vehicle while intoxicated for at least the second time.
As additional criminal law measures, confiscation of vehicles from drunk drivers in Estonia began in the 2000s. At the time, there was no separate law for confiscating the vehicles of drunk drivers, and the prosecution relied on the standard “instrument of crime” forfeiture provision for this purpose. However, confiscation of vehicles from drunk drivers continued to be controversial among lawyers, and one case even reached the Supreme Court’s Constitutional Chamber of Estonia in 2007. The Supreme Court considered the confiscation of the vehicle constitutional and since then, an average of 100–200 vehicles have been confiscated per year.
The law at the time allowed the confiscation of criminal instruments only if the owner was the perpetrator of the crime. Therefore, it was not possible to confiscate, for example, vehicles used on the basis of a leasing contract. For this reason, in practice there were more examples of confiscation of cheap and older vehicles, while more expensive leased vehicles remained outside the reach of the law.
In this regard, the Estonian Penal Code was amended in 2008 and since then it has also been possible to “confiscate the rights arising from the lease agreement”, if “the instrument of the crime” was leased or rented. However, the implementation of this provision in practice has remained rather rare, as it assumes that most of the lease payments have already been paid and the market value of the car is greater than the unpaid lease amount, otherwise there is no point in the state confiscating the “rights” arising from the lease agreement. Even if, for example, the state confiscated the right to use a leased vehicle, the lessor usually terminated the contract, and the vehicle was returned to the lessor. All in all, it was more of a theoretical than a practical solution to the problem.
However, in certain cases, the court can also confiscate the vehicle, even if it belonged to a third party at the time of the offence. For this, the owner of the vehicle must (a) have at least recklessly contributed to the committing the offence or its preparation, or (b) have received the vehicle at the expense of the offender (e.g. as a gift), or (c) have known that the vehicle had been handed over to them to avoid confiscation.
The Supreme Court of Estonia has, for example, dealt with a case where a member of the company's board was driving a vehicle belonging to the company under the influence of alcohol. The court considered confiscation of the vehicle from the company permissible. According to the court, the offender was an accessory in the crime, since he gave the vehicle, as a representative of the company to a private individual, for his own use, to commit the offence.
In 2017, the law was amended again, and since then if “the instrument of crime” cannot be confiscated for any reason (or is not practical), it can be replaced with an amount corresponding to the value of the property subject to confiscation. Thus, instead of confiscating the vehicle used for drunk driving, it is possible to oblige the convicted person to pay its monetary value. In practice, this option has been used primarily in cases where the vehicle was transferred to a bona fide owner before confiscation. In the case of leased cars, this provision has not been used in practice so far.
Finally, it should be added that the confiscation of a drunk driver's vehicle is not mandatory; it is a discretionary decision of the court and is used primarily in cases of repeated crimes. According to statistics, the vehicle is confiscated in about 5% of cases related to crimes of drunk driving. Despite the small statistical total, it is an important criminal policy measure to ensure traffic safety.
Dr. iur. Violeta Zeppa-Priedīte, Sorainen Counsel, Head of the Corporate Crime Investigation & Compliance practice in Latvia
Norman Aas, Sorainen Partner, Head of the Risk Management, Corporate Crime Investigation & Protection Practice in Estonia
Darius Raulušaitis, Sorainen Counsel, Head of the Risk Management, Corporate Crime Investigation & Protection Practice in Lithuania