Last Updated on June 1, 2019 by LawEuro
FIRST SECTION
DECISION
Application no.30305/13
Ana SRŠEN
against Croatia
The European Court of Human Rights (First Section), sitting on 22 January 2019 as a Chamber composed of:
Linos-Alexandre Sicilianos, President,
Ksenija Turković,
Armen Harutyunyan,
Pauliine Koskelo,
Tim Eicke,
Jovan Ilievski,
Gilberto Felici, judges,
and Abel Campos, Section Registrar,
Having regard to the above application lodged on 25 March 2013,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Ms Ana Sršen, is a Croatian national, who was born in 1977 and lives in Dubrovnik. She was represented before the Court by Mr G. Lujak, a lawyer practising in Dubrovnik.
2. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. On 1 August 2007 at about 10 p.m. the applicant and her husband were involved in a road traffic accident in which another person died. The applicant was immediately taken to a nearby hospital by the driver of another vehicle not involved in the accident.
5. Following the accident, there was an immediate response by an investigating judge of the Dubrovnik County Court (Županijski sud u Dubrovniku), who carried out an on-site inspection. The record of that inspection states that the investigating judge gave an order for blood and urine tests to be taken to determine the level of alcohol in the blood of the drivers and passengers of the two vehicles involved in the accident.
6. On 2 August 2007 at about 1 a.m. the police carried out alcohol tests on the applicant and her husband. The police request for the applicant to be tested indicates that she was the driver of one of the vehicles in the road traffic accident concerned.
7. A police report of 2 August 2007 indicates that the applicant had no alcohol in her blood or urine. The report states that she was either the driver of the vehicle concerned or a passenger in that vehicle. A police report of the same date in respect of the applicant’s husband states that he was either the driver of the vehicle concerned or a passenger in that vehicle.
8. On 29 September 2007 the police drew up an official note (službena zabilješka) in which it was stated, inter alia, that the applicant had been driving one of the vehicles involved in the road traffic accident at issue.
9. On 10 October the police lodged a criminal complaint against the applicant in relation to charges of causing a road accident resulting in the death of one person.
10. On 19 November 2007 the Dubrovnik Municipal State Attorney’s Office asked that an investigation be opened in respect of the applicant. On the same day the applicant was summoned before an investigating judge of the Dubrovnik County Court. She was informed of the charges against her and her rights as an accused, including the right to be legally represented and to remain silent. The applicant was represented by a lawyer of her own choosing, and she said that she understood the charges against her and had decided to remain silent, making no comments whatsoever.
11. On 20 December 2007 the applicant was indicted in the Dubrovnik Municipal Court (Općinski sud u Dubrovniku) on charges of causing a road traffic accident with a fatal outcome.
12. During the trial the applicant was represented by a lawyer of her own choosing, and she was again advised of her rights and asked whether she understood the charges against her. The applicant said that she did and that she would remain silent. Exercising his right to testimonial privilege, her husband likewise did not give evidence at trial.
13. At a hearing held on 13 May 2010 A.G., the husband of the victim and a victim himself, gave evidence as a witness. He could not remember the accident owing to a brain injury he had sustained, but he remembered all that had happened before and after the accident. He said that the very next day after the accident, in the hospital, when he had regained consciousness for the first time after the accident, the applicant had been there and had expressed her condolences, and she had called him once again on the telephone. Her parents had also come to the hospital and apologised to him.
14. At a hearing held on 7 September 2010, at the request of the applicant’s defence lawyer, the Dubrovnik Municipal Court excluded from the case file the part of the police’s official note of 29 September 2007 where it was stated that the applicant had been driving one of the vehicles involved in the road accident at issue.
15. At a hearing held on 29 October 2010 M.V., the policeman who had carried out alcohol tests on the applicant and her husband, gave evidence as a witness. He said that the persons who had been tested had told him who had been driving and who had been a passenger, but he did not say what they had told him. The relevant part of his statement reads:
“I obtained the information about who was the driver and who was a passenger from the persons who were tested for alcohol consumption. After that I drew up the report on testing for the presence of alcohol, opiates and medication in the bodies of the persons tested, and I carried out an interview with D.S. [the applicant’s husband].”
After that evidence had been adduced, the applicant’s defence lawyer asked that all the parts of the reports on the alcohol tests concerning the applicant, her husband and A.G be excluded from the case file as unlawful evidence where they indicated who had been driving and who had been a passenger. That application was accepted on the grounds that that information had been obtained in connection with official notes drafted by the police and from “potential witnesses and the accused”, and was therefore unlawful evidence under Article 9 of the Code of Criminal Procedure read in conjunction with Article 78 and Article 177 §§ 2 and 4.
16. Upon an appeal by the prosecution, that decision was quashed on 8 February 2011 by the Dubrovnik County Court. The relevant part of the court’s decision reads:
“The Municipal State Attorney correctly stresses in his appeal that the act of testing Ana Sršen, D.S. and A.G. for alcohol consumption by means of a breathalyser (alkometar) [sic] was a lawful act and that the records of that testing constitute valid evidence for the purposes of the criminal proceedings, in particular because at the time when that evidence was collected none of the persons concerned was a suspect in respect of any criminal offence, and the police’s act in obtaining the information on where each of the persons involved in the road traffic accident at issue had been at the time of the accident was not an unlawful act, because the police are authorised to collect such information, and it is well known that the police carry out on-site inspections in cases of road traffic accidents and collect certain information from citizens. Lastly, the alcohol tests cannot be seen as witness statements or the statement of a suspect, but an act that the police are authorised to carry out and whose results constitute lawful evidence.”
17. At a hearing held on 16 March 2011, relying on Article 177 §4 of the Code of Criminal Procedure, the applicant’s defence counsel again objected to the information collected by the police and argued that such information could not serve as evidence in criminal proceedings.
18. During the trial a case file of the Dubrovnik Minor Offences Court concerning proceedings against the applicant for minor offences on account of the road traffic accident at issue was also consulted. The documents in the case file before the Court do not indicate what happened in those proceedings.
19. On 10 June 2011 the Dubrovnik Municipal Court found the applicant guilty and sentenced her to nine months’ imprisonment. It found that her statement to the police during the alcohol testing was conclusive of the fact that she had been driving the car. The relevant part of the judgment reads:
“On the basis of the record [drawn up] by the Dubrovnik traffic police station on the test for the presence of alcohol, opiates or medication in the accused’s body, this court concludes that on the occasion in question it was she who was driving the … vehicle … because she herself gave that information to the police during the alcohol testing, and at the same time her husband, D.S., gave the information that he had been a passenger in the same vehicle, and since neither of them was under the influence of alcohol there is no reason to doubt their statements.”
20. The applicant appealed against that judgment to the Dubrovnik County Court. She argued, inter alia, that the evidence relating to the tests on alcohol consumption could only serve to determine the level of alcohol in her blood, and could not be used as evidence of a confession that she had been driving the car, considering that the statement which she had given in that context had not been in accordance with the relevant procedural safeguards. The same was true as regards the statement given by her husband in the same circumstances saying that he had been a passenger in the vehicle in question.
21. On 22 March 2012 the Dubrovnik County Court dismissed the applicant’s appeal as ill-founded, upholding the first-instance judgment. It held that the information obtained by the use of the tests on alcohol consumption was evidence which the police had lawfully obtained whilst acting within the scope of their authority to conduct such examinations. The relevant part of the second-instance judgment reads:
“… contrary to the allegations made in the appeal, this court does not find that there have been any grave breaches of the provisions [regulating] criminal procedure, since a judgment may be based on the information contained in a record of alcohol testing and the police are authorised to collect such information when they carry out on-site inspections, and at the time when the accused told the police that she had been driving a vehicle, she was not a suspect …”
22. The applicant challenged those findings by lodging a request for extraordinary review of a final judgment (zahtjev za izvanredno preispitivanje pravomoćne presude) with the Supreme Court (Vrhovni sud Republike Hrvatske). She argued that her statement to the police, as well as that of her husband, had been given contrary to the guarantees under Article 177 §§ 3 and 5 of the Code of Criminal Procedure, and that under Article 78 §3 of the same Code those statements had to be excluded from the case file. On 14 November 2012 the Supreme Court dismissed her complaints as ill-founded, upholding the findings of the Dubrovnik County Court. The relevant part of the Supreme Court’s judgment reads as follows:
“It should be stressed that testing for the presence of alcohol, opiates or medication in a person’s body is carried out under section 282 of the Road Traffic Safety Act, which is based on section 4 of the same Act, and is to be understood as the supervision [nadzor] of drivers and other [road] users and does not fall within the category of an inquest [izvidi] into criminal offences, as that term is defined under Article 177 of the Code of Criminal Procedure. Therefore, a record of alcohol testing is not an official note on interviewing citizens, and is not unlawful evidence which has to be excluded from the case file, as wrongly asserted by the applicant.”
23. The applicant then brought her complaints before the Constitutional Court (Ustavni sud Republike Hrvatske). In her constitutional complaint, the applicant stressed in particular that her conviction was based on her own statement – a statement which she had given to the police without having been informed of her rights, such as the right to remain silent or to be represented by a lawyer. As regards her husband, he had opted to exercise his privilege not to give evidence in the criminal proceedings at issue, and therefore the statement which he had given to the police could not be taken into account. On 14 February 2013 the Constitutional Court declared her constitutional complaint inadmissible as manifestly ill-founded.
B. Relevant domestic law
24. The relevant provisions of the Code of Criminal Procedure (Zakon o kaznenom postupku, Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002, 143/2002, 62/2003, and 115/2006) read as follows:
Article 9
“(1) The courts’ decisions in criminal proceedings cannot be based on unlawfully obtained evidence (unlawful evidence).
(2) Unlawfully obtained evidence is evidence obtained by means of a breach of the fundamental rights of the defence, the right to dignity, reputation, honour and respect for private and family life guaranteed under the Constitution, law and international law, and evidence obtained in breach of the rules of criminal procedure in so far as set out in this Act, as well as any other evidence obtained unlawfully.”
Article 78
“(1) Where this Act provides that a judicial decision cannot be based on certain evidence, the investigating judge shall, at the request of the parties or ex officio, exclude such evidence from the file before the conclusion of the investigation, or before he gives consent for the indictment to be preferred without an investigation (Article 191 paragraph 2). The decision of the investigating judge is open to an appellate review.
(2) After the decision [on the exclusion of evidence] becomes final, the excluded evidence shall be sealed in an envelope and the investigating judge shall keep it separate from other files, and it may not be consulted or used in the proceedings.
(3) After the investigation and after consent is given to prefer the indictment without an investigation (Article 191 paragraph 2), the investigating judge shall also proceed in accordance with the provisions of paragraphs 1 and 2 of this Article in respect of all information which, in accordance with Article 174 paragraph 4 and Article 173 paragraph 3 of this Act, is given to the State Attorney or to police officers by citizens or by suspects who have been interrogated contrary to the provisions of Article 177 paragraph 5 of this Act.”
Inquests into criminal offences
Article 177
“(1) If there are grounds for suspecting that a criminal offence subject to public prosecution has been committed, the police shall be bound to take necessary measures aimed at discovering the perpetrator, preventing the perpetrator or accomplice from fleeing or going into hiding, and discovering and securing traces of the offences and objects of evidentiary value, as well as collecting all information which could be useful for conducting criminal proceedings. …
(2) In order to fulfil the duties referred to in paragraph 1 of this Article, the police may seek information from citizens, carry out polygraph tests, voice analysis, and the necessary inspections of means of transportation, passengers and luggage, … [and] implement measures necessary for the identification of persons and objects … When facts and circumstances established in the course of carrying out [such duties] might be of interest to the criminal proceedings, an official record shall be made in respect of those facts and circumstances.
…
(4) When collecting information, the police cannot interview citizens in their capacity as accused persons, witnesses or expert witnesses. …
(5) When collecting information, the police shall inform a suspect [of his or her rights] under Article 225 paragraph 2 of this Code. At the suspect’s request, the police shall allow him or her to hire a lawyer, and for that purpose they shall stop interviewing the suspect until the lawyer attends – at the latest three hours after the suspect asks for a lawyer. … If the circumstances indicate that the chosen lawyer will not be able to attend within this period of time, the police shall allow the suspect to instruct a lawyer from the list of duty lawyers provided to the competent police authority by the county branches of the Croatian Bar Association … If the suspect does not hire a lawyer, or if the requested lawyer fails to attend within the time allowed, the police authorities may resume interviewing the suspect … The State Attorney has the right to be present during the questioning. The record of [any] statement given by the suspect to the police in the presence of a lawyer may be used as evidence in the criminal proceedings.
Article 225
“…
(2) The accused shall be informed of the charges against him or her, and of his or her right not to present his or her defence or answer questions.
(3) The accused shall then be informed of his or her right to hire a defence lawyer of his or her own choosing …”
25. The relevant provisions of the Road Traffic Safety Act (Zakon o sigurnosti prometa na cestama, Official Gazette no 105/2004) read as follows:
Section 4
“Supervision and control of road traffic, [and] supervision of vehicles, drivers and other road users is carried out by police officers of the Ministry of the Interior (hereinafter ‘police officers’).”
229 (3) and (7)
“(3) The owner or the person keeping the vehicle shall give reliable information as to the identity of the driver at a request of a police officer …
…
(7) The owner, the person keeping the vehicle … shall be fined between 2,000 and 5,000 Croatian kunas for a minor offence if they do not, within fifteen days, give a reliable evidence as to the identity of the driver at the time the minor offence was committed.”
Section 282
“(1) In order to establish the presence of alcohol, opiates or medication labelled as being incompatible with driving, a police officer in charge of the supervision of drivers and other road users is authorised to carry out testing by relevant means and equipment (by a breathalyser or other means) on any user whose behaviour disrupts or endangers [road] traffic … For the same purpose, [a police officer is also] authorised to take such persons to have blood and urine tests or a medical examination.
…
(4) Persons under paragraph 1 … of this section shall comply with the requests of a police officer.
(5) A police officer draws up a record of the actions taken … or a request for a medical examination and blood and urine tests.
…”
COMPLAINT
26. The applicant complained that her rights under Article 6 §§ 1 and 3 (c) of the Convention had been violated in the criminal proceedings against her.
THE LAW
27. The applicant complained that she had been questioned by the police during the initial stages of the investigation without the benefit of legal advice, and that her privilege against self-incrimination had not been properly observed. She relied on Article 6 §§ 1 and 3 (c) of the Convention, the relevant part of which reads as follows:
“1. In the determination of … any criminal charge against him, everyone is entitled to a fair … hearing … by [a] … tribunal …
3. Everyone charged with a criminal offence has the following minimum rights:
…
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
…”
A. Submissions of the parties
28. The Government argued that the guarantees of Article 6 of the Convention had not been applicable when the applicant had talked to the police immediately prior to being tested for alcohol, since at that time she had not been “charged” with any criminal offence or considered an “accused”.
29. The Government submitted that the applicant had had a fair trial and had been represented by a lawyer of her own choosing as soon as an investigation in respect of her had been opened in December 2009, that she had been able to attend the trial, and that both she and her defence lawyer had been able to present evidence and examine witnesses. The judgments of the national courts were adequately reasoned and not arbitrary in any respect.
30. When the applicant had given the statement at issue to the police, she had not asked for a lawyer to be called. Also, she had not in any way been coerced into giving that statement. She had never denied that she had actually been driving the vehicle in question. She and her husband had been the only persons who could have been driving that vehicle on that occasion, and both of them had told the police that it had been the applicant who had been driving.
31. The applicant argued that at that point an inquest by the police into the circumstances of the road accident at issue had already started, and that she had been questioned as to whether she had been driving the vehicle which had caused that accident.
32. The applicant asserted that she had been convicted of causing a road accident with a fatal outcome on the basis of her own self-incriminating statement that she had been driving the vehicle which had caused that accident. However, that statement had been given to the police without her having been informed of her rights, such as the right to legal assistance, to remain silent and not to incriminate herself. Being ignorant of such rights, she had not asked for legal assistance and had given a self-incriminating statement.
B. The Court’s assessment
33. The Court does not have to address the issue of the applicability of Article 6 in the present case because, even assuming that Article 6 is applicable, the present application is in any event inadmissible for the following reasons.
34. The Court has already dealt with a number of cases where applicants had been required to reveal certain information under compulsion, in particular the identity of a person who had driven a vehicle (see, for example, O’Halloran and Francis v. the United Kingdom [GC], nos. 15809/02 and 25624/02, ECHR 2007‑III; Lückhof and Spanner v. Austria, nos. 58452/00 and 61920/00, §§ 52-59, 10 January 2008; and Marttinen v. Finland, no. 19235/03, § 73, 21 April 2009). In those cases, the Court put significant emphasis on the degree of compulsion brought to bear on the respective applicants.
35. However, the present case differs from the cases mentioned above in one significant aspect – the applicant of her own free will, without any pressure or compulsion, replied to a police officer that she had driven the vehicle in question. Indeed, the applicant did not even allege that there had been any compulsion. The gist of her complaint is that she gave a statement – confirming that she had driven one of the two vehicles involved in a road accident with a fatal outcome – without having been informed of her rights, such as her right to remain silent, her right not to incriminate herself and her right to a lawyer, all in violation of the guarantees under Article 6 §§ 1 and 3 (c) of the Convention.
(a) General principles
36. The relevant general principles have been set out in the case of Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others, §§ 249-274, 13 September 2016; and Beuze v. Belgium [GC], no. 71409/10, §§ 119-150, 9 November 2018). As regards the case at issue, the Court stresses the following in particular.
37. As the Court has explained on numerous occasions, it is not its role to determine, as a matter of principle, whether particular types of evidence, including evidence obtained unlawfully in terms of domestic law, may be admissible.
38. The right of everyone charged with a criminal offence to be effectively defended by a lawyer, as guaranteed by Article 6 § 3 (c), is one of the fundamental features of a fair trial. Prompt access to a lawyer constitutes an important counterweight to the vulnerability of suspects in police custody, provides a fundamental safeguard against coercion and the ill-treatment of suspects by the police, and contributes to the prevention of miscarriages of justice and the fulfilment of the aims of Article 6, notably equality of arms between the investigating or prosecuting authorities and the accused (see Ibrahim and Others, cited above, § 255; Simeonovi v. Bulgaria [GC], no. 21980/04, § 112, 12 May 2017; and Beuze, cited above, §§ 125‑126). Lastly, one of the lawyer’s main tasks during the police custody and at the investigation stage is to ensure respect for the right of an accused not to incriminate himself and for his right to remain silent (see Beuze, cited above, § 128).
39. In this connection, the Court in the above-cited Beuze case has considered:
“129. … it to be inherent in the privilege against self-incrimination, the right to remain silent and the right to legal assistance that a person “charged with a criminal offence”, within the meaning of Article 6, should have the right to be informed of these rights, without which the protection thus guaranteed would not be practical and effective (seeIbrahim and Others, cited above, § 272, andSimeonovi, cited above, § 119; the complementarity of these rights had already been emphasised inJohn Murray v. the United Kingdom, 8 February 1996, § 66,Reports of Judgments and Decisions1996-I;Bruscov. France, no.1466/07, § 54, 14 October 2010; andNavone and Others, cited above, §§ 73‑74). Consequently, Article 6 § 3 (c) of the Convention must be interpreted as safeguarding the right of persons charged with an offence to be informed immediately of the content of the right to legal assistance, irrespective of their age or specific situation and regardless of whether they are represented by an officially assigned lawyer or a lawyer of their own choosing (seeSimeonovi, cited above, § 119).
130. In the light of the nature of the privilege against self-incrimination and the right to remain silent, the Court considers that in principle there can be no justification for a failure to notify a suspect of these rights. Where a suspect has not, however, been so notified, the Court must examine whether, notwithstanding this failure, the proceedings as a whole were fair. Immediate access to a lawyer able to provide information about procedural rights is likely to prevent unfairness arising from the absence of any official notification of these rights. However, where access to a lawyer is delayed, the need for the investigative authorities to notify the suspect of his right to a lawyer, his right to remain silent and the privilege against self‑incrimination takes on particular importance (seeIbrahim and Others, cited above, § 273, and case-law cited therein).”
40. As regards the privilege against self-incrimination, the Court also set out the following principles in the case of Ibrahim and Others (cited above, §§ 266-69):
“266. The right not to incriminate oneself is primarily concerned with respecting the will of an accused person to remain silent and presupposes that the prosecution in a criminal case seek to prove their case without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused (see Saunders v. the United Kingdom, 17 December 1996, §§ 68-69, Reports 1996‑VI; Jalloh, cited above, §§ 100 and 102; and Bykov, cited above, § 92). The right to remain silent under police questioning and the privilege against self-incrimination are generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6. Their rationale lies, inter alia, in the protection of the accused against improper compulsion by the authorities, thereby contributing to the avoidance of miscarriages of justice and to the fulfilment of the aims of Article 6 (see John Murray, cited above, § 45; Jalloh, cited above, § 100; and Bykov, cited above, § 92).
267. It is important to recognise that the privilege against self‑incrimination does not protect against the making of an incriminating statement per se but, as noted above, against the obtaining of evidence by coercion or oppression. It is the existence of compulsion that gives rise to concerns as to whether the privilege against self-incrimination has been respected. For this reason, the Court must first consider the nature and degree of compulsion used to obtain the evidence (see Heaney andMcGuinness v. Ireland, no. 34720/97, §§ 54-55, ECHR 2000-XII; O’Halloran and Francis, cited above, § 55; and Bykov, cited above, § 92). The Court, through its case-law, has identified at least three kinds of situations which give rise to concerns as to improper compulsion in breach of Article 6. The first is where a suspect is obliged to testify under threat of sanctions and either testifies in consequence (see, for example, Saunders, cited above; and Brusco v. France, no. 1466/07, 14 October 2010) or is sanctioned for refusing to testify (see, for example, Heaney and McGuinness, cited above; and Weh v. Austria, no. 38544/97, 8 April 2004). The second is where physical or psychological pressure, often in the form of treatment which breaches Article 3 of the Convention, is applied to obtain real evidence or statements (see, for example, Jalloh, Magee and Gäfgen, all cited above). The third is where the authorities use subterfuge to elicit information that they were unable to obtain during questioning (see Allan v. the United Kingdom, no. 48539/99, ECHR 2002‑IX).
…
269. However, the right not to incriminate oneself is not absolute (see Heaney and McGuinness, cited above, § 47; Weh, cited above, § 46; and O’Halloran and Francis, cited above, § 53). The degree of compulsion applied will be incompatible with Article 6 where it destroys the very essence of the privilege against self-incrimination (see John Murray, cited above, § 49). But not all direct compulsion will destroy the very essence of the privilege against self-incrimination and thus lead to a violation of Article 6 (see O’Halloran and Francis, cited above, § 53). What is crucial in this context is the use to which evidence obtained under compulsion is put in the course of the criminal trial (see Saunders, cited above, § 71).
…”
(b) Application of these principles to the present case
41. The applicant learned that she had been indicted as the accused and the person who had been driving the vehicle as early as 19 November 2007, when the Dubrovnik Municipal State Attorney’s Office asked for an investigation to be opened in respect of her and when, on the same day, she was summoned to appear before an investigating judge. It is, however, true that the national courts expressly relied on the self-incriminating statement that the applicant had made during the alcohol testing on 2 August 2007 as the only evidence of who had been driving the vehicle in question – a statement which the applicant had made without having been informed of her right to legal assistance, right to remain silent and right not to incriminate herself.
1. Legal Assistance
42. The Court observes that in the present case the applicant was not formally arrested or interrogated in police custody (see Aleksandr Zaichenko v. Russia, no. 39660/02, § 47, 18 February 2010). There is no indication that the applicant was not free to leave and the circumstances of the case do not disclose any significant curtailment of the applicant’s freedom of action, which could be sufficient for activating a requirement for legal assistance already at this stage of the proceedings.
43. Moreover, the applicant was not subject to questioning related to the accident. She was found at the site of a road accident and taken to hospital where a blood test was taken. When the blood test was performed, she was only asked a restricted routine information as to the identity of the driver (see Yankov and Manchev v. Bulgaria, nos. 27207/04 and 15614/05, § 23, 22 October 2009). The blood test form to be filled in contains the rubric identifying participants of the accident as drivers, passengers, passersby. The answer was provided in public, without any compulsion, out of her free will.
44. The Court also observes that in compliance with the domestic legislation the blood test was performed because the applicant was involved in a car accident (see paragraph 25 above). The Court has already acknowledged that submitting a person in such circumstances to a blood test is not contrary to the principle of presumption of innocence (see, for example, Tirado Ortiz and Lozano Martin v. Spain(dec.), no. 43486,98, 16 June 1999). The Court has also accepted that an obligation to inform the authorities of the identity of the driver on the occasion of suspected commission of road traffic offences, even under the threat of sanction, is not contrary to Article 6 (1) of the Convention because possession and use of cars are recognized to have potential to cause grave injury (see O’Halloran, cited above, § 57).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 without requiring the presence of a lawyer. The Court concludes on the basis of the materials in the case file that the blood test and the applicant’s statement that she had driven the vehicle at issue were carried out in a direct sequence of events.
45. The foregoing considerations suffice for the Court to conclude that the absence of legal representation while blood test was performed did not affect the applicant’s right to legal assistance under Article 6 § 3 (c) of the Convention.
2. Privilege against self-incrimination and right to remain silent
46. The Court reiterates that privilege against self‑incrimination does not protect against the making of an incriminating statement per se but against the obtaining of evidence by coercion or oppression. It is the existence of compulsion that gives rise to concerns as to whether the privilege against self-incrimination has been respected (see § 40 above).
47. The Court considers that the circumstances of the present case show that that there was no element whatsoever of any form of compulsion used against the applicant. The applicant only answered a routine question in the context of police powers concerning road traffic safety. There is no indication that she was threatened by any sanction if she would have refused to answer that question (contrast O’Halloran and Francis, cited above, § 57). The applicant never confessed to the crime at issue.
48. In this connection the Court stresses that the applicant had been asked to state a simple fact – who had been the driver of a vehicle involved in a road accident – which was not in itself incriminating (compareWeh v. Austria, no. 38544/97, §§ 32-56, 8 April 2004, see also O’Halloran and Francis, cited above, § 50). The identity of the driver is only one element in the offence at issue, and, as already has been pointed out, there is no question of a conviction arising in any subsequent proceedings in respect solely of the information about the identity of a driver (compare O’Halloran and Francis, cited above, § 60).
49. There is nothing in the case to call into question the reliability of her statement given almost immediately after the accident. Neither when she was summoned to appear before an investigating judge nor when the indictment against her was preferred on 20 December 2007 did the applicant challenge the accusation, for example byobjecting to the indictment. The applicant actually never denied that she had been driving the vehicle in question.
50. As to the use to which the statements were put, the applicant’s statement that she was the driver of the vehicle at issue was admissible as evidence of that fact by virtue of section 229 (3) and (7) of the Road Traffic Safety Act (see paragraph 25 above). At her trial, she attempted to challenge the admission of the statement although the challenge was unsuccessful. The prosecution proved the offence beyond reasonable doubt in the proceedings at issue. The applicant was able to give evidence and call witnesses. The identity of the driver was only one element of the offence. The driver could have been only her or her husband. Neither of them denied that she was driving.
51. Given the specific circumstances of the present case and in particular the limited nature of the information sought, the essence of the right to remain silent and not to incriminate herself cannot be said to have been destroyed (compare O’Halloran and Francis, cited above, § 62).
52. The Court considers that there is no appearance that her rights under the Convention were not respected by that statement being admitted as evidence(compare N.K. v. Germany, no. 59549/12, § 57, 26 July 2018). Accordingly, the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 14 February 2019.
Abel Campos Linos-Alexandre Sicilianos
Registrar President
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