Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 15668/89

by W.K.

against Switzerland

The European Commission of Human Rights sitting in private on

6 December 1991, the following members being present:

MM.C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

G. SPERDUTI

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs.G.H. THUNE

SirBasil HALL

MM.F. MARTINEZ

C.L. ROZAKIS

Mrs.J. LIDDY

MM.L. LOUCAIDES

J.-C. GEUS

A.V. ALMEIDA RIBEIRO

M.P. PELLONPÄÄ

B. MARXER

Mr.H.C. KRÃœGER, Secretary to the Commission,

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 14 August 1989 by

W.K. against Switzerland and registered on 23 October 1989 under file

No. 15668/89;

Having regard to :

-the report provided for in Rule 47 of the Rules of Procedure of

the Commission;

-the observations submitted by the respondent Government on

14 June 1991 and the observations in reply submitted by the

applicant on 27 August 1991.

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case, as submitted by the parties, may be

summarised as follows:

The applicant, a Swiss citizen born in 1949, is a businessman

residing at P. in Switzerland. Before the Commission he is represented

by Mr. E. Pfister, a lawyer practising at Lachen.

A.Particular circumstances of the case

I.

On 22 January 1985 between 4 and 5 a.m. the applicant was driving

on the N3 motorway from Zurich to P. in the Canton of Schwyz. Shortly

before leaving the motorway, two police officers, D. and K., of the

Canton of Zurich police force drove up behind him. As he was driving

suspiciously slowly, they followed him when he left the motorway for

P.; he then disregarded a traffic sign, whereupon they stopped him.

The applicant then underwent a breathalyser test. When this

proved to be positive, the police officers ordered the taking and an

examination of a sample of the applicant's blood. The police officers

then took him to the P. District Hospital where a blood sample was

taken by the doctor on duty. The blood sample was analysed by the

Institute of Legal Medicine (Gerichtsmedizinisches Institut) of the

Canton of Zurich which found a blood alcohol concentration of 1,61

o/oo.

II.

Criminal proceedings were instituted against the applicant before

the Höfe District Office (Bezirksamt). On 25 January 1985 the police

officer K. testified as follows:

[Translation]

"We left the motorway on the P. exit. We noticed how the

car, a Toyota, in front of us at the end of the motorway exit

drove over the 'stop' sign at a speed of about 20 km/h and then

turned left in the direction of P./Canton of Schwyz. This

driving manoeuvre disturbed nobody, as at this time there was no

traffic on the Cantonal road."

[German]

"Wir verliessen die Autobahn durch die Ausfahrt P.. Dabei

stellten wir fest, wie der vor uns fahrende Personenwagen Toyota,

bei der Einmündung der Autobahnausfahrt in die Kantonsstrasse den

dortigen Stop überfuhr. Der Lenker des Personenwagens Toyota

überfuhr den Stop mit einer Geschwindigkeit von ca. 20 km/h und

bog nach links in Richtung P./SZ ab. Durch dieses Fahrmanöver

wurde niemand behindert, da zu diesem Zeitpunkt auf der

Kantonsstrasse kein Verkehr herrschte."

On 7 February 1985 the case-file was transferred to the applicant

for consultation.

On 12 February 1985 the applicant was questioned by the

investigating judge at the Höfe District Office. On the same day, he

wrote to the investigating judge, complaining that the evidence had

been unlawfully obtained.

On 20 February 1985 the police officer D. made the following

statement before the Höfe District Office:

[Translation]

"I was in the passenger seat of the police car. We were on

traffic control duty. We said to each other that we would

control him, too. We decided to control (the applicant) only

after the exit. I no longer know exactly whether it was on

account of the weather or the traffic. From time to time we stop

vehicles which we intend to control only after leaving the

motorway. This for security reasons. (The applicant) then drove

to the 'stop' sign. Without stopping, he drove over it and turned

left towards P. ... It was not a case which necessarily had to

be controlled on the motorway. It was a pure routine control on

the basis of slow driving and driving over the 'stop'."

[German]

"Ich war Beifahrer im Polizeiwagen. Wir waren auf

Verkehrsüberwachung. Wir sagten noch zueinander, den

kontrollieren wir noch. Wir entschlossen uns, (den

Beschwerdeführer) erst nach der Ausfahrt zu kontrollieren. Ich

weiss es nicht mehr genau, ob es wegen des Wetters oder des

Verkehrs war. Wir halten ab und zu Fahrzeuge, die wir

kontrollieren wollen, erst nach der Autobahn auf. Dies aus

Sicherheitsgründen. Küng fuhr dann auf den Stop zu. Ohne

anzuhalten überfuhr er diesen und fuhr nach links Richting P. ...

Es war kein Fall, der unbedingt auf der Autobahn zu kontrollieren

war. Es war eine reine Routinekontrolle aufgrund der langsamen

Fahrweise und des Stopüberfahrens."

On 26 February 1985 the Höfe District Office informed the

applicant that the investigations were closed; he was given ten days

to consult the case-file and, if necessary, to file further

supplementary requests (Ergänzungsbegehren). A further time-limit of

ten days was granted on 13 March 1985.

On 9 April 1985 the Höfe District Office indicted the applicant

of the violation of traffic regulations and of driving under the

influence of alcohol. The bill of indictment stated that the applicant

had the possibility to request inter alia the taking of evidence

(Beweismassnahmen zu beantragen).

On 29 April 1985, after a hearing, the Höfe District Court

(Bezirksgericht) convicted the applicant of disregarding a traffic

sign, but acquitted him of the offence of driving under the influence

of alcohol; the Court found in particular that the police officers of

the Canton of Zurich police force had not been competent to order the

blood examination.

III.

The Public Prosecutor (Staatsanwalt) of the Canton of Schwyz

appealed against this decision. On 14 May 1987 the Cantonal Court

(Kantonsgericht) of the Canton of Schwyz terminated the proceedings

with regard to the offence of disregarding a traffic sign. On the

other hand, it convicted the applicant of driving under the influence

of alcohol and sentenced him to a fine of 1,500 SFr. The Court thereby

relied on the results of the chemical and medical examination of the

sample of the applicant's blood.

Against this decision the applicant filed a public law appeal

(staatsrechtliche Beschwerde). He complained inter alia with reference

to Section 22 of the Schwyz Regulations on the powers of the judicial

police (Schwyzerisches Reglement über die Organisation der

gerichtlichen Polizei; see below, Relevant domestic law and practice)

that the Zurich police had not been competent to stop him in the Canton

of Schwyz and to order the taking of a blood sample.

IV.

The applicant's public law appeal was dismissed by the Federal

Court (Bundesgericht) on 10 December 1987. The applicant was notified

of the decision on 16 December 1987. The written reasons of the

decision, numbering sixteen pages, were served on the applicant on 24

February 1989.

In its decision the Federal Court first considered that the lower

court had had sufficient evidence to prove the applicant's guilt so

that it was unnecessary to call further witnesses or take further

evidence.

The Court then found that not in every case illegally obtained

evidence had to be excluded. If only formal conditions concerning the

taking of evidence had not been met, it would be disproportionate

completely to exclude such evidence. Thus, illegally obtained evidence

could not be considered inadmissible if it could have been obtained

legally under other circumstances.

The Court further considered that the taking of a blood sample

constituted an interference with the applicant's personal freedom but

that Section 55 of the Road Traffic Act (Strassenverkehrsgesetz) and

Sections 138 et seq. of the Ordinance on the admittance of persons and

vehicles to the road traffic (Verordnung über die Zulassung von

Personen und Fahrzeugen zum Strassenverkehr; see below, Relevant

domestic law and practice) provided a sufficient legal basis for it.

In the Federal Court's view, the lower court could without

arbitrariness consider that Section 57bis of the Road Traffic Act and

the Agreement between the Cantons of Schwyz and Zurich on the functions

of the motorway police on the N3 (Vereinbarung über die Ausübung der

Autobahnpolizei auf der Nationalstrasse 3; see below Relevant domestic

law and practice) ensured mainly cantonal sovereignty with regard to

coordinating questions of policing, but was not intended to grant

additional protection to motorists driving under the influence of

alcohol. With reference to its case-law the Federal Court thus found

that the special cantonal jurisdiction regulated in Section 57bis of

the Road Traffic Act could not in principle exclude the admissibility

of a blood sample in order to determine the drunkenness of a motorist.

With regard to the necessity of the taking of a blood sample the

Federal Court noted that the police officers' attention had been drawn

to the applicant on account of the manner in which he drove. The police

officers followed him to the exit though they did not want to stop him

before the end of the exit. As the applicant then drove over the

'stop' sign, the police officers could only stop him on the Cantonal

road. Thus, the question of hot pursuit according to Section 356 of

the Penal Code arose (see below, Relevant domestic law and practice).

The Federal Court also considered that in any event the Schwyz Cantonal

Police could quite legally have ordered the taking of evidence.

With regard to the applicant's complaint that the police were not

competent to order a blood examination, the Court noted that the

persons mentioned in Section 22 of the Schwyz Regulations on the powers

of the judicial police could not be reached at night, and one could not

wait too long with a blood examination. The Court further found:

[Translation]

"It is therefore sensible not rigidly to consider the basic rule

of Section 22 of the Police Regulations in isolation but in

connection with the exceptional circumstance mentioned in Section

4 para. 3 which permits the police in the case of "imminent

danger" immediately to take measures which cannot be postponed

unless the suspected person himself insists formally to be

brought [before the investigating authorities]; there can be no

question here of an arbitrary interpretation by the Cantonal

Court."

[German]

"Es ergibt deshalb durchaus einen vernünftigen Sinn, die

Grundregel von § 22 des Polizeireglements nicht als starre

Einzelvorschrift zu betrachten sondern im Zusammenhang mit dem

Ausnahmetatbestand von § 4 Abs. 3 zu sehen, welcher der Polizei

bei 'Gefahr im Verzug' erlaubt, die unaufschiebbaren Massnahmen

sofort zu treffen, sofern der Verdächtigte nicht seinerseits auf

einer förmlichen Vorführung besteht; von einer willkürlichen

Auslegung durch das Kantonsgericht kann dabei keine Rede sein."

The Court also saw no issue with regard to the applicant's

complaints under Article 6 para. 2 of the Convention. Under Article

8 of the Convention the Court considered that the applicant's blood

sample had been taken in the framework of the investigations as

provided by law (im Rahmen gesetzlich vorgesehener Ermittlungs-

massnahmen) and this measure was in the public interest and necessary.

B.Relevant domestic law and practice

I.

As regards the powers of the police, Section 57bis of the Road

Traffic Act (Strassenverkehrsgesetz) states as follows:

[Translation]

"Section 57bis. Police on motorways ... 2. The competent

motorway police maintains in its area, regardless of cantonal

borders, order and security and undertakes police investigations.

In addition, in the case of criminal offences of any kind it

takes those measures which cannot be postponed and which must be

pursued on the motorway. In case of criminal offences the

competent motorway police promptly ensures that the authorities

of the cantonal area take further measures ..."

[German]

"Artikel 57bis. Polizei auf Autobahnen ... 2. Die

zuständige Autobahnpolizei besorgt auf ihrem Abschnitt unabhängig

von den Kantonsgrenzen den Ordnungs- und Sicherheitsdienst und

die polizeiliche Fahndung sowie bei Straftaten jeder Natur die

unaufschiebbaren Massnahmen, die auf dem Autobahngebiet

vorzunehmen sind. Sie veranlasst bei Straffällen unverzüglich

die Organe des Gebietskantons zu den weiteren Massnahmen ..."

On the basis of Section 57bis the Cantons of Schwyz and Zurich

concluded an Agreement on the functions of the motorway police on the

N3 (Vereinbarung über die Ausübung der Autobahnpolizei auf der

Nationalstrasse 3). Section 5 states as follows:

[Translation]

"Section 5

(1)The motorway police of the original Canton is competent for

police investigations as well as in respect of all criminal

offences for measures which cannot be postponed and which must

be undertaken on the motorway section of the cantonal area.

(2)Persons who in cases of offences of common criminal law are

caught in the act, or who are suspected thereof, or in respect

of whom there is a warrant of arrest, or whose arrest has been

ordered in some other way, must be brought by the motorway police

to the criminal investigating authorities of the cantonal area.

(3)The motorway police promptly ensures in the case of

criminal offences that the investigating authorities of the

cantonal area undertake further measures."

[German]

"(1)Der Autobahnpolizei des Stammkantons obliegen die

polizeiliche Fahndung, sowie bei Straftaten jeder Natur die

unaufschiebbaren Massnahmen, die auf der Autobahnstrecke des

Gebietskantons vorzunehmen sind.

(2)Personen, die bei strafbaren Handlungen des gemeinen Rechts

auf frischer Tat betroffen oder deren Verübung verdächtigt oder

die zur Verhaftung ausgeschrieben sind oder deren Festnahme auf

andere Weise angeordnet worden ist, sind von der Autobahnpolizei

den Strafuntersuchungsbehörden des Gebietskantons zuzuführen.

(3)Die Autobahnpolizei veranlasst bei Straffällen unverzüglich

die Untersuchungsorgane des Gebietskantons zu den weiteren

Massnahmen."

Section 55 of the Road Traffic Act states:

[Translation]

"Section 55. Drunkenness

...

2. Motorists and persons on the street involved in a car

accident must, if there are indications of drunkenness, submit

to appropriate examinations. The taking of a blood sample may

be ordered ..."

[German]

"Artikel 55. Angetrunkenheit

...

2. Fahrzeugführer und an Unfällen beteiligte

Strassenbenützer, bei denen Anzeichen von Angetrunkenheit

vorliegen, sind geeigneten Untersuchungen zu unterziehen. Die

Blutprobe kann angeordnet werden ..."

Based thereupon the Federal Council has enacted the Ordinance on

the admittance of persons and vehicles to the road traffic (Verordnung

über die Zulassung von Personen und Fahrzeugen zum Strassenverkehr)

which in Sections 138-142 deals with the principles and procedures for

determining drunkenness. Section 139 deals in particular with the

taking of a blood sample.

Section 356 of the Penal Code (Strafgesetzbuch) concerns "hot

pursuit" (Nacheile) and states:

[Translation]

"(1)The police officers are empowered in urgent cases to pursue

an accused or a convicted person to the territory of another

Canton and arrest him there.

(2)The arrested person shall immediately be brought before the

nearest officer of the Canton competent to issue a warrant of

arrest. The officer shall prepare minutes of the arrested

person's statement and take further necessary measures."

[German]

(1)Die Beamten der Polizei sind berechtigt, in dringenden

Fällen einen Beschuldigten oder einen Verurteilten auf das Gebiet

eines anderen Kantons zu verfolgen und dort festzunehmen.

(2)Der Festgenommene ist sofort dem nächsten zur Ausstellung

eines Haftbefehls ermächtigten Beamten des Kantons zur Festnahme

zuzuführen. Dieser hört den Festgenommenen zu Protokoll an und

trifft die erforderlichen weiteren Verfügungen."

II.

Section 22 of the Schwyz Regulations on the powers of the

judicial police (Schwyzerisches Reglement über die Organisation der

gerichtlichen Polizei) provides that only an investigating judge or the

District Court may order an analysis of the blood alcohol

concentration. If these authorities cannot be reached the person

concerned must be brought before the District Doctor (Bezirksarzt) or

his deputy.

III.

According to Section 84 para. 1 (a) of the Federal Judiciary Act

(Organisationsgesetz) the public law appeal serves as a remedy to

complain about the violation of constitutional rights. The public law

appeal may be directed in particular against a cantonal decision

(Section 84 of the Federal Judiciary Act). If the Federal Court

decides to grant the public law appeal, the Court is competent to quash

the contested decision and order a new decision. The previous instance

is then obliged to take into consideration the reasons given by the

Federal Court (see Arrêts du Tribunal fédéral 100 Ia 30).

COMPLAINTS

1.The applicant complains that he had to wait approximately 14

months for the written reasons of the decision of the Federal Court to

be served on him.

He further complains that the only evidence proving his guilt -

the examination of his blood alcohol - was obtained illegally in that

the Zurich Cantonal police were not competent to stop him and to order

the taking of a blood sample. He also complains that in the ensuing

court proceedings he was not allowed to put questions to the policemen

and that the Federal Court relied, to the applicant's disadvantage, on

the written statements of the police officers.

In this respect the applicant relies on Article 6 paras. 1, 2 and

3 (d) of the Convention.

2.Under Article 8 of the Convention he complains that the stopping

by the policemen who ordered the alcohol breathing test and the taking

of a blood sample constituted an interference with his private life for

which there was no legal basis.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 14 August 1989 and registered

on 23 October 1989.

On 8 April 1991 the Commission decided to communicate the

application to the respondent Government and invite them to submit

written observations on the admissibility and merits of the

application.

The Government's observations were received by letter dated 14

June 1991. The applicant's observations in reply were dated 27 August

1991.THE LAW

1.The applicant complains under Article 6 paras. 1, 2 and 3 (d)

(Art. 6-1, 6-2, 6-3-d) of the Convention of the criminal proceedings

in which he was involved. These provisions state, insofar as relevant:

"1. In the determination ... of any criminal charge against

him, everyone is entitled to a fair and public hearing within a

reasonable time by an independent and impartial tribunal

established by law. ...

2.Everyone charged with a criminal offence shall be presumed

innocent until proved guilty according to law.

3.Everyone charged with a criminal offence has the following

minimum rights:

...

d. to examine or have examined witnesses against him and to

obtain the attendance and examination of witnesses on his behalf

under the same conditions as witnesses against him; ..."

a)Under Article 6 para. 1 (Art. 6-1) of the Convention the

applicant complains that he was not heard within a reasonable time.

He complains in particular that he had to wait fourteen months for the

written reasons of the decision of the Federal Court to be served on

him.

The applicant submits that Article 6 para. 1 (Art. 6-1) of the

Convention is applicable to the proceedings before the Federal Court

as the latter could have quashed the previous decision and thus

determined a criminal charge within the meaning of Article 6 para. 1

(Art. 6-1). Moreover, the period to be considered under this provision

must include the preparation of the written reasons of the decision,

since only these reasons enable the applicant to understand the

judgment.

The Government invite the Commission to state whether public law

appeal proceedings before the Federal Court fall to be considered under

Article 6 para. 1 (Art. 6-1) of the Convention. Reference is made in

particular to the Convention organs' case-law (see Eur. Court H.R.,

Buchholz judgment of 6 May 1981, Series A no. 42, p. 15, para.48; No.

8410/78, Dec. 13.12.79, D.R. 18 p. 216).

Even assuming that Article 6 (Art. 6) was applicable, the

Government contend that the applicant does not complain of the period

leading up to the Federal Court's decision. Moreover, with reference

to the Commission's case-law it is submitted that the period to be

considered under Article 6 para. 1 (Art. 6-1) of the Convention ends

when the applicant is notified of the decision (see Ventura v. Italy,

Comm. Report 15.12.80, D.R. 23 p. 5, at p. 43, para. 196; Huber v.

Austria, Comm. Report 8.2.73, D.R. 2 p. 11, at p. 21, para. 73). In

the present case this occurred on 16 December 1987. On the basis of

this notification the outcome of the proceedings became clear to the

applicant. In the Government's opinion it cannot therefore be said

that the proceedings lasted too long.

The Commission, having regard to the parties' submissions under

Article 6 para. 1 (Art. 6-1) of the Convention concerning the length

of the proceedings, considers that these complaints raise complex

issues of fact and law which can only be resolved by an examination of

the merits. This part of the application cannot, therefore, be

declared manifestly ill-founded within the meaning of Article 27 para.

2 (Art. 27-2) of the Convention. No other grounds for inadmissibility

have been established.

b)Under Article 6 para. 1 (Art. 6-1) the applicant further

complains that the only evidence proving his guilt - the examination

of his blood alcohol - was obtained unlawfully in that the Zurich

Cantonal police were not competent to stop him and order the taking of

a blood sample.

The applicant refers in this respect to Section 57bis of the Road

Traffic Act and Section 5 of the Schwyz/Zurich Agreement. The

applicant further refers to the statements of the police officers of

25 January and 20 February 1985 the latter having been made in the

absence of the applicant and his lawyer. These statements confirm that

there was no urgency and that the police officers undertook a mere

routine control. In any event, paragraph 2 of Section 356 of the Penal

Code would have obliged the Zurich police officers to bring the

applicant before an investigating judge.

The applicant further complains under Article 6 paras. 1 and 3

(d) (Art. 6-1, 6-3-d) of the Convention that in the court proceedings

he was not allowed to put questions to the police officers and that the

Federal Court relied, to the applicant's disadvantage, on their written

statements. He had no occasion to question the police officers in the

District Court proceedings as he did not know that on 20 February 1985

one police officer had been questioned. In the applicant's opinion,

under Article 6 (Art. 6) of the Convention the defence must have the

possibility to call in question any evidence or testimony brought

before the court on which the latter relies.

The Government recall that the Federal Court considered Section

55 of the Road Traffic Act and Sections 138 et seq. of the Ordinance

based thereupon as constituting a sufficient legal basis to oblige

motorists to submit to a breath analysis and the taking of a blood

sample.

While the Zurich authorities did exceed their powers concerning

territorial jurisdiction by a few metres, the Government contest that

the evidence obtained does not comply with the requirements under the

Convention. The Government note that the policemen became aware of the

applicant as he was driving particularly slowly, and partly on the side

of the road. As he disregarded the "stop" sign, the policemen

suspected drunkenness and pursued him. Under these circumstances,

Section 356 of the Penal Code entitled the policemen to pursue the

applicant. In the light of the Commission's Report in the Schenk case

(Schenk v. Switzerland, Comm. Report 10.5.87, Eur. Court. H.R., Series

A no. 140, p. 39, para. 59) the Government conclude that the possible

disregard of rules ensuring cantonal sovereignty in a Federal State

cannot amount to a breach of Article 6 para. 1 (Art. 6-1) of the

Convention.

As regards the questioning of witnesses, the Government submit

that in the District Court proceedings the applicant frequently had the

possibility to question the police officers. In any event the

Government cannot see how the questioning of these persons could modify

the results of the breath analysis and the blood sample.

With regard to the judicial decisions of which the applicant

complains, the Commission recalls that, in accordance with Article 19

(Art. 19) of the Convention, its only task is to ensure the observance

of the obligations undertaken by the Parties in the Convention. In

particular, it is not competent to deal with an application alleging

that errors of law or fact have been committed by domestic courts,

except where it considers that such errors might have involved a

possible violation of any of the rights and freedoms set out in the

Convention. The Commission refers, on this point, to its established

case-law (see e.g. No. 458/59, Dec. 29.3.60, Yearbook 3 pp. 222, 236;

No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77; No. 7987/77, Dec.

13.12.79, D.R. 18 pp. 31, 45).

It is true that the applicant complains under Article 6 paras.

1 and 3 (d) (Art. 6-1, 6-3-d) of the Convention that the evidence

proving his guilt was obtained unlawfully and that he could not put

questions to certain witnesses.

According to the Convention organs' case-law the admissibility

of evidence is primarily a matter for regulation by national law and,

as a rule, it is for the national courts concerned to assess the

evidence before them. Furthermore, the Convention does not exclude

evidence obtained unlawfully under domestic law as a matter of

principle and in the abstract. The Convention organs' task is to

ascertain whether the proceedings, considered as a whole, including the

way in which evidence was taken, were fair (see Eur. Court H.R., Asch

judgment of 26 April 1991, Series A no. 203, para. 26; Schenk v.

Switzerland, Comm. Report, loc. cit., p. 37 et seq., para. 56, p. 39,

para. 59).

The Commission has first examined the manner in which in the

domestic proceedings the evidence leading to the applicant's

conviction, in particular a sample of the applicant's blood, was

assessed.

The Commission has had regard to the Federal Court's decison of

10 December 1987 according to which Section 55 of the Road Traffic Act

and Sections 138 et seq. of the Ordinance based thereupon sufficed in

principle as a legal basis to obtain a blood sample. Moreover, the

Federal Court and also the Government in their submissions to the

Commission both considered that the purpose of Section 57bis of the

Road Traffic Act concerning the powers of the motorway police was to

ensure cantonal sovereignty in a Federal State and not to grant

additional protection to motorists driving under the influence of

alcohol. Thus the Federal Court expressly found that Section 57bis of

the Road Traffic Act could not in principle exclude the admissibility

of a blood sample in order to determine drunkenness.

As regards the issue whether the doctor on duty at the P.

District Hospital was the competent authority to take the blood sample,

the Commission again notes the Federal Court's decision of 10 December

1987 according to which the relevant Section 22 of the Schwyz Police

Regulations, while in principle providing for a District Doctor or his

deputy to take the blood sample, should not be interpreted in

isolation; rather Section 22 had to be read together with Section 4

para. 3 which permitted the police, in cases of imminent danger, to

take urgent measures.

As a result, in the light of the above considerations and in view

of the domestic authorities' primary responsibility in the assessment

of evidence, the Commission does not find that the domestic authorities

unfairly admitted evidence before them which eventually led to the

applicant's conviction. In this respect therefore, there is no

indication that the applicant did not have a fair trial within the

meaning of Article 6 para. 1 (Art. 6-1) of the Convention.

The Commission has next examined the applicant's complaint that

he could not put questions to the police officers concerned. The

Commission recalls in this respect that Article 6 paras. 1 and 3 (d)

(Art. 6-1, 6-3-d) require that the defendant be given an adequate and

proper opportunity to challenge and question a witness against him (see

Eur. Court H.R., Asch judgment, loc. cit., para. 28).

However, it is in the Commission's opinion clear that the

decisive evidence in the criminal proceedings was the sample of the

applicant's blood. The police officers' statements did not constitute

the main means of evidence on which the domestic authorities based

their decision.

As a result, in the circumstances of the case, there is also in

this respect no indication that the applicant did not have a fair trial

within the meaning of Article 6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d)

of the Convention.

Insofar as the applicant also relies under Article 6 para. 2 of

(Art. 6-2) the Convention, the Commission finds no issue under this

provision.

It follows that this part of the application is manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2.Under Article 8 (Art. 8) of the Convention the applicant

complains that the stopping by the policemen who ordered the alcohol

breathing test and the taking of a blood sample constituted an

interference with his private life for which there was no legal basis.

Article 8 (Art. 8) of the Convention provides:

"1.Everyone has the right to respect for his private and

family life, his home and his correspondence.

2.There shall be no interference by a public authority with

the exercise of this right except such as is in accordance with

the law and is necessary in a democratic society in the interests

of national security, public safety or the economic well-being

of the country, for the prevention of disorder or crime, for the

protection of health or morals, or for the protection of the

rights and freedoms of others."

The Government contend that the obligation imposed on a motorist

to submit to a blood test when suspected of driving under the influence

of alcohol is justified under Article 8 para. 2 (Art. 8-2) of the

Convention as being necessary for the protection of the rights and

freedoms of others. In the Government's opinion the legal basis for

this measure can be found in Section 356 of the Penal Code and Sections

55 and 57 of the Road Act.

The Commission considers that the taking of a blood sample

constitutes an interference with the applicant's right to respect for

his private life within the meaning of Article 8 para. 1 (Art. 8-1) of

the Convention (see No. 8239/78, X v. the Netherlands, Dec. 4.12.78,

D.R. 16 p. 184). Its task is, therefore, to examine whether this

interference was justified under Article 8 para. 2 (Art. 8-2) of the

Convention.

The first issue is whether the interference was "in accordance

with the law" within the meaning of Article 8 para. 2 (Art. 8-2) of the

Convention. According to the Convention organs' case-law "it is in the

first place for the national authorities, notably the courts, to

interpret and apply the domestic law: the national authorities are, in

the nature of things, particularly qualified to settle the issues

arising in this connection" (see Eur. Court H.R., Barthold judgment of

25 March 1985, Series A no. 90, p. 22, para. 48).

In the present case the Commission recalls the Federal Court's

decision of 10 December 1987. According to that decision Section 55

of the Road Traffic Act and Sections 138 et seq. of the Ordinance based

thereupon sufficed in principle as a legal basis to obtain a blood

sample. Section 57bis of the Road Traffic Act could not serve to

exclude the admissibility of such a blood sample in order to determine

a motorist's drunkenness. Finally, with regard to the issue of the

competent doctor taking the blood sample, Section 22 of the Schwyz

Police Regulations, taken together with Section 4 para. 3, permitted

the police, in case of imminent danger, to take urgent measures.

In the Commission's opinion these considerations apply to its

examination under Article 8 para. 2 (Art. 8-2) of the complaints at

issue. It follows that the measures complained of were "in accordance

with the law" within the meaning of this provision. The Commission

moreover considers that the taking of a blood sample serves to

determine drunkenness of motorists and thus protects road safety and

other persons (see No. 8239/78, loc. cit.). The measure was,

therefore, "necessary in a democratic society in the interests of ...

public safety ... for the prevention of disorder or crime (and) for the

protection of the rights and freedoms of others" within the meaning of

Article 8 para. 2 (Art. 8-2) of the Convention.

It follows that this part of the application is also manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

For these reasons, the Commission, unanimously,

DECLARES ADMISSIBLE, without prejudging the merits of the case,

the applicant's complaint under Article 6 para. 1 (Art. 6-1) of

the Convention about the length of the proceedings; and

DECLARES INADMISSIBLE the remainder of the application.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

Menu

K. v. SWITZERLAND

K. v. SWITZERLAND

LEXI