[TRANSLATION]

THE FACTS

The applicants [Mr Jesús Santiago Tirado Ortiz and Mr Santiago Lozano Martin] are two Spanish nationals who were born in 1951 and 1965 respectively and live in Saragossa.

They were represented before the Court by Mr E. Trebolle Lafuente, of the Saragossa Bar.

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

A.  The circumstances of the case

1.  The first applicant

At 11.35 p.m. on 15 June 1996 the applicant, who was driving on the motorway, had an argument with a toll-gate official about the amount he was to be charged for using the motorway. Shortly afterwards, some guardia civil officers, having been alerted by the toll-gate official, observed that the applicant was driving his car in zigzags. After stopping him, they noted that he appeared to be under the influence of alcohol. The applicant refused to submit to a breath test, despite being informed that his refusal might make him liable to prosecution under Article 380 of the Criminal Code for serious failure to obey the orders of a law-enforcement officer.

An investigation was conducted, following which the applicant was committed for trial on charges of endangering other road-users and serious failure to obey orders.

After adversarial proceedings the Saragossa Criminal Court no. 7, in a judgment of 19 November 1996 sentenced the applicant to a fine or, in default of payment, three months’ imprisonment, and disqualified him from driving for one year for endangering other road-users or jeopardising road safety contrary to Article 379 of the Criminal Code. It decided to refer to the Constitutional Court the question whether Article 380 of the Criminal Code, which made serious failure to obey the orders of an officer a criminal offence, was compatible with Article 24 of the Constitution, which guarantees the right not to make self-incriminating statements and not to confess guilt. The court accordingly, decided to stay its decision on the second charge until the Constitutional Court had ruled on the constitutionality of Article 380.

The applicant appealed against his conviction on the charge of endangering other road-users, but it was upheld by the Saragossa Audiencia provincial on 29 November 1997.

In a judgment delivered by a full court on 18 December 1997 the Constitutional Court held that Article 380 of the Criminal Code was compatible with Article 24 of the Spanish Constitution. The Constitutional Court held that breath tests were not designed to compel drivers to admit certain facts, but were merely a means of obtaining expert evidence, and could not be regarded as obliging the driver to incriminate himself or, therefore, as being contrary to Article 24 § 2 of the Constitution. The court held that breath tests did amount to interference with the right to respect for a person’s private life, guaranteed by Article 18 of the Constitution, but that the interference was necessary for the prevention of road accidents and for the safety of others.

After adversarial proceedings the Saragossa Criminal Court no. 7, in a judgment of 12 January 1998, convicted the applicant of serious failure to obey orders on the ground that he had refused to submit to a breath test. It sentenced him to six months’ imprisonment.

2.  The second applicant

At about 6.30 a.m. on 20 July 1996 the applicant struck two other cars while attempting to park in Saragossa. An argument ensued with the owners of the other two cars and the applicant was taken to the police station where he was ordered to submit to a breath test. The applicant refused to do so, despite being informed that his refusal might make him liable to prosecution for serious failure to obey an officer’s orders.

In a judgment of 2 June 1997 the Saragossa Criminal Court no. 1 decided to refer to the Constitutional Court the question whether Article 380 of the Criminal Code, which made serious failure to obey orders a criminal offence, was compatible with Article 24 of the Constitution, which guarantees the right not to make self-incriminating statements and not to confess guilt. The court accordingly decided to stay its decision on the charge until the Constitutional Court had ruled on the constitutionality of Article 380.

Following the above-mentioned judgment of the Constitutional Court of 18 December 1997, the Saragossa Criminal Court no. 1, in a judgment of 5 January 1998, convicted the applicant of serious failure to obey an officer’s orders on the ground that he had refused to submit to a breath test. It sentenced him to six months’ imprisonment. The applicant appealed to the Saragossa Audiencia provincial. The case is still pending before that court.

 

B.  Relevant domestic law

Criminal Code

Chapter IV – Road safety offences

Article 379

“Anyone driving a motor vehicle or moped under the influence of toxic or narcotic drugs, psychotropic substances or alcoholic drinks shall be liable to a prison sentence of eight to twelve weekends or to three to eight month-fines and shall in any event be disqualified from driving a motor vehicle or moped … for a period of one to four years.”

Article 380

“A driver who refuses to comply with a law-enforcement officer’s orders to submit to a statutory test to verify the condition referred to in the preceding Article shall be punished in the same way as a person convicted of serious failure to obey orders, as provided in Article 556 of this Code.”

Article 556

“Anyone … who resists an order of the authorities or their officers, or is guilty of serious failure to obey them in the exercise of their duties, shall be liable to a prison sentence of six months to one year.”

Under section 12(2) of the Traffic and Road Safety Act of 2 March 1990 and sections 21 to 24 of the General Implementing Regulations of 17 January 1992, tests of alcohol levels may be ordered by a police officer or a judicial authority. They usually consist in testing, by means of approved breath-testing device, the air exhaled. The person concerned can ask for a second test, which may be a blood, urine or other test.

COMPLAINTS

Relying on Article 6 § 2 of the Convention, the applicants asserted that their conviction for serious failure to obey orders on account of their refusal to submit to a breath test infringed the principle that anyone charged with a criminal offence has the right not to make self-incriminating statements.

Relying on Article 8 of the Convention, the applicants asserted that the obligation to submit to a breath test infringed their right to respect for their private lives.

THE LAW

1.  The applicants alleged that their conviction for serious failure to obey orders for refusing to submit to a breath test infringed the principle that anyone charged with a criminal offence has the right not to make self-incriminating statements. They relied on Article 6 § 2 of the Convention, which provides:

“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

The Court points out that the Contracting States are free to define the constituent elements of an offence. Moreover, the Convention does not, in theory, prohibit presumptions of law as regards criminal law (see the Salabiaku v. France judgment of 7 October 1988, Series A no. 141-A, p. 15, §§ 27-28). The Court reiterates further that, although not specifically mentioned in Article 6 of the Convention, the right to silence and the right not to incriminate oneself are genuinely recognised international standards which lie at the heart of the notion of a fair procedure under Article 6. The right not to incriminate oneself, in particular, pre-supposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused. In this sense the right is closely linked to the presumption of innocence contained in Article 6 § 2 of the Convention. The right not to incriminate oneself is primarily concerned, however, with respecting the will of an accused person to remain silent. As commonly understood in the legal systems of the Contracting Parties to the Convention and elsewhere, it does not extend to the use in criminal proceedings of material which may be obtained from the accused through the use of compulsory powers but which has an existence independent of the will of the suspect such as, inter alia, documents acquired pursuant to a warrant; breath, blood and urine samples; and bodily tissue for the purpose of DNA testing (see the Saunders v. the United Kingdom judgment of 17 December 1996, Reports of Judgments and Decisions 1996-VI, pp. 2064-65, §§ 68-69). In another case the Convention institutions concluded that obliging the driver of a motor vehicle suspected of being under the influence of alcohol to submit to a blood test was not contrary to the principle of presumption of innocence (see X v. the Netherlands, application no. 8239/78, decision of the Commission of 4 December 1978, Decisions and Reports (DR) 16, p. 184). The Court notes in the instant case that the legal provision objected to is based on an analogous principle.

The Court also observes that the police officers requested breath tests because they suspected the applicants of committing an offence. Furthermore, various guarantees are provided against arbitrary or improper use of tests. Moreover, tests of alcohol level are commonly used in Council of Europe member States in connection with traffic legislation.

Having regard to the foregoing, the Court considers that the legal provision in question, as applied in the applicants’ case, does not disclose any appearance of a violation of Article 6 of the Convention. It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 § 3 of the Convention (see, mutatis mutandis, P., R. and H. v. Austria, applications nos. 15135/89, 15136/89 and 15137/89, decision of the Commission of 5 September 1989, DR 62, p. 319, and Tora Tolmos v. Spain, application no. 23816/94, decision of the Commission of 17 May 1995, DR 81-B, p. 82).

2.  Relying on Article 8 of the Convention, the applicants complained that the obligation to submit to a breath test infringed their right to respect for their private life.

The Court considers, however, that the Spanish legal provisions in this domain were inspired by the concern and need to protect society and, more particularly, to ensure road safety and protect the health of others. Thus, while compulsory testing of alcohol levels may be regarded as amounting to a violation of the applicants’ private life within the meaning of Article 8 § 1 of the Convention, it may also be seen as necessary for the prevention of criminal offences and the protection of the rights and freedoms of others. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 § 3 of the Convention.

For these reasons, the Court unanimously,

Declares the application inadmissible.

TIRADO ORTIZ AND LOZANO MARTIN v. SPAIN DECISION


TIRADO ORTIZ AND LOZANO MARTIN v. SPAIN DECISION