SECOND SECTION

DECISION

Application no. 43927/17 S.R . against Norway

The European Court of Human Rights (Second Section), sitting on 21 April 2020 as a Chamber composed of:

Robert Spano, President, Marko Bošnjak , Valeriu Griţco , Egidijus Kūris , Arnfinn Bårdsen , Saadet Yüksel , Peeter Roosma , judges, and Stanley Naismith, Section Registrar ,

Having regard to the above application lodged on 3 June 2017,

the application against the Kingdom of Norway lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Norwegian national, Mr S.R. (“the applicant”), on 3 June 2017;

the decision to give notice to the Norwegian Government (“the Government”) of the complaint concerning Article 8 of the Convention;

the decision not to have the applicant ’ s name disclosed;

the parties ’ observations;

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Mr S.R., is a Norwegian national who was born in 1990 and lives in Bodø . The President granted the applicant ’ s request for his identity not to be disclosed to the public (Rule 47 § 4 of the Rules of Court). He was represented before the Court by Mr J.C. Elden, a lawyer practising in Oslo.

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

3 . On 20 June 2015 the applicant was arrested by the police for having approximately 5 grams of hashish in a ziplock bag. He was questioned immediately afterwards and, according to the report of the questioning, stated that he had bought the hashish a few days earlier, and that it had been approximately one week since he had last smoked hashish. He further stated that he smoked hashish approximately one to three times monthly. At his home, the police seized a quantity of hashish and some user paraphernalia that he had informed the police that he had.

4 . On 22 June 2015 the police issued him with a fine for violating the first paragraph of Article 162 of the 1902 Penal Code (storage of narcotics) and section 31 of the Medicines Act (possession and use of narcotics). As to the latter, the fine stated that the applicant had smoked hashish on 20 June 2015 and, since he claimed that he had not done so, the applicant refused to accept the fine, stating that he was not guilty of contravening the Medicines Act.

5 . On 9 July 2015 the police sent the applicant a notice of intention to withdraw his right to drive motor vehicles owing to lack of sobriety ( tilbakekall av føreretten grunnet manglende edruelighet ).

6 . On 19 August 2015 the applicant ’ s right to drive motor vehicles was withdrawn owing to lack of sobriety by reference to section 34(5) of the Road Traffic Act (see paragraph 21 below). The decision stated, inter alia :

“Questioned on 20 June 2015, you admitted to using hashish approximately one to three times monthly. Furthermore, you admitted to being guilty of buying 5 grams of hashish and use of hashish on 20 June 2015 at the latest.

The police find that your use of illegal intoxicants is such that you cannot be considered to have ‘ sober habits ’ in the sense in which that term is used in the Road Traffic Act [ du ikke anses å være edruelig i vegtrafikklovens forstand ]. Reasons of traffic security therefore require withdrawal of [your] right to drive.”

The decision further stated:

“In the event of applying to have the right to drive restored, you must document non-intoxication [ rusfrihet ] over a prolonged period of at least one year, by giving regular negative urine tests at a doctor ’ s. The police will also consider whether you have to pass a theoretical and/or practical exam.”

7 . On 26 August 2015 the applicant appealed against the decision to withdraw his right to drive and asked that its implementation be suspended pending the decision on his appeal. He made further submissions in a letter of 2 September 2015, maintaining, among other things, that admitting to buying 5 grams of hashish and using it to an unspecified extent when not driving could not give any indication about his suitability as a driver. He argued that a person who drank wine or beer daily would not lose his or her right to drive and that the Parliamentary Ombudsman ( Sivilombudsmannen ) had pointed out that the illegality of the intoxicant was not relevant under the Road Traffic Act.

8 . On 9 October 2015 the police decided not to reverse their decision and it was accordingly transmitted to the Directorate of the Police ( Politidirektoratet ) to be examined on appeal; the police also decided not to suspend implementation of the measure. They submitted that there was legitimate doubt as to whether the applicant would behave with diligence and consideration on the road as required by the Road Traffic Act. Importance was attached to the fact that the applicant had admitted to using hashish one to three times monthly, that he had been fined on 22 June 2015 for hashish possession and use (see, however, paragraphs 4 above and 12 below), and that, in 2009, he had been fined for storing illegally distilled spirits after being found carrying a bottle containing 0.3 litres of such spirits. It was further stated, inter alia , that while the police understood how the loss of the right to drive could have repercussions for persons who needed a driving licence for their work, road-safety considerations were more important than the applicant ’ s right to drive. The decision was therefore considered proportionate.

9 . The applicant made further submis sions in a letter of 15 October 2015. He argued again, among other things, that the Parliamentary Ombudsman had strongly objected to the police ’ s practice of attaching importance to the illegality of the intoxicant in question, and also complained that the overall assessment of road safety required by section 34(5) of the Road Traffic Act had been completely absent in his case. He maintained that the decision was intrusive ( inngripende vedtak ) and referred in that context to the condition that he submit himself to regular visits to health personnel.

10 . On 19 November 2015 the Directorate of the Police upheld the decision. The Directorate stated, inter alia , that the relevant rules were applied very strictly based on the precautionary principle ( [r] egelverket praktiseres svært strengt basert på et “ føre var ” prinsipp ). It also stated that there was a difference between legal and illegal intoxicants when considering the suitability of a person to drive a motor vehicle, as the use of illegal intoxicants in itself entailed crossing boundaries ( er i seg selv grensesprengende ). Road users were required to respect the law and rules, in order to ensure that they acted safely in accordance with them. It was therefore clear that a person who drank a glass of beer or wine with dinner daily would not have the right to drive motor vehicles withdrawn, in contrast to persons who regularly or sporadically used illegal intoxicants.

11 . The applicant appealed against the decision of the Directorate of the Police to the Salten District Court ( tingrett ) and concurrently requested an interim measure that his right to drive be restored pending a final judgment. In his application he argued that withdrawing the right to drive was a serious interference ( alvorlig inngrep ). He did, however, not submit that the withdrawal represented an interference in his rights under the Convention, the Norwegian Constitution or any other legal provision or principle to the same effect.

12 . On 15 December 2015 the applicant accepted a fine relating solely to the storage of narcotics in violation of Article 162 of the 1902 Penal Code. He was not fined for the use of narcotics under the Medicines Act (see paragraph 4 above).

13 . On 1 March 2016 the District Court upheld the decision to withdraw the applicant ’ s right to drive and refused to grant an interim measure in the form of an order to suspend implementation of the decision.

14 . The applicant appealed against the District Court ’ s judgment on the merits, as well as its decision not to suspend implementation of the impugned measure, to the Hålogalan d High Court ( lagmannsrett ). In the course of the appeal proceedings, the applicant emphasised, inter alia , that the impugned decision had placed considerable stress ( stor belastning ) on him, in particular because of his work situation. But he did not submit that the withdrawal represented an interference in his rights under the Convention, the Norwegian Constitution or any other legal provision or principle to the same effect. The High Court heard the case on 25 August 2016. The applicant and three witnesses, two of whom were experts, gave evidence.

15 . On 15 September 2016 the High Court upheld the District Court ’ s judgment, as well as that court ’ s decision not to suspend implementation of the measure. The High Court found it established that the applicant used hashish one to three times monthly (see paragraph 3 above). As to whether that indicated that he could not be considered sober ( ikke kan anses som “ edruelig ” ), it noted that road-safety considerations had to be decisive. On the basis, inter alia , of information provided by the experts, the High Court concluded that the applicant ’ s use of hashish was not far above the threshold ( er i det nedre sjikt ) for having the right to drive withdrawn, but it was a fact that he had used hashish several times already and that he had been about to use it again when he had been arrested. He had demonstrated that he had a habit which went beyond “the sporadic” and which was capable of limiting his suitability as a driver. The High Court considered that, although the domestic legislation referred to “road-safety considerations” as a separate condition for the withdrawal of the right to drive, it did not really have an independent character since it would generally be met by a person lacking sobriety. Lastly, the High Court stated that it had not been argued, nor had there been any evidence to suggest, that the withdrawal decision had been the result of an abuse of power.

16. On 6 October 2016 the applicant appealed against the High Court ’ s judgment to the Supreme Court. In his appeal he argued, among other things, that the police ’ s practice on withdrawing the right to drive was not in accordance with the requirements that flowed from Article 113 of the Constitution (see paragraph 18 below). He did not submit any arguments regarding the Convention. Nor did he invoke the protection of “private life” prescribed in Article 102 of the Constitution.

17. On 20 December 2016 the Supreme Court ’ s Appeals Leave Committee ( Høyesteretts ankeutvalg ) refused the applicant leave to appeal against the High Court ’ s judgment. It stated only that it found, in accordance with section 30-4 of the Dispute Act (see paragraph 20 below), that there was no reason to grant leave.

18. Articles 102 and 113 of the Norwegian Constitution ( Grunnloven ) of 17 May 1814, as revised in May 2014, read as follows:

Article 102

“Everyone has the right to respect for their privacy and family life, their home and their communication. Searches of private homes shall not be carried out except in criminal cases.

The authorities of the State shall ensure the protection of personal integrity.”

Article 113

“Any interference with the individual by the authorities must be founded on the law.”

19. The relevant parts of sections 2 and 3 of the Human Rights Act ( menneskerettsloven ) of 21 May 1999 read as follows:

Section 2

“The following Conventions shall have the force of Norwegian law in so far as they are binding for Norway:

1. The Convention of 4 November 1950 for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocol No. 11 of 11 May 1994 to the Convention, together with the following Protocols: ...”

Section 3

“The provisions of the Conventions and Protocols mentioned in section 2 shall take precedence over any other legislative provisions that conflict with them.”

20. The relevant subsections of section 29-3 and section 30-4 of the Dispute Act ( tvisteloven ) of 17 June 2005 read as follows:

Section 29-3 – Grounds of appeal

“(1) An appeal may be brought against a judgment or an interlocutory order on the grounds of error in the assessment of the facts, error in the application of law or error in the procedure upon which the ruling is based.”

Section 30-4 – Leave to appeal against judgments

“(1) Judgments cannot be appealed against without leave. Leave can only be granted if the appeal concerns issues that are of significance beyond the scope of the current case or if it is important for other reasons that the case be decided by the Supreme Court.

(2) The issue of leave shall be determined for each appeal. Leave may be limited to specific claims and to specific grounds of appeal, including specifically invoked errors in the application of the law, procedure or the factual basis for the ruling.”

21. Section 34(5) of the Road Traffic Act ( vegtrafikkloven ) of 18 June 1965 reads as follows:

“If the holder of a driving licence does not have sober habits [ ikke er edruelig ] or his conduct is otherwise such that he is not considered suitable to drive a motor vehicle, the chief of police or anyone authorised by him may withdraw the right to drive a motor vehicle for a specific length of time or indefinitely, if considerations of road safety [ hensynet til trafikksikkerhet ] or public interest [ allmenne hensyn ] so require.”

COMPLAINT

22. The applicant complained under Article 8 of the Convention about the decision to withdraw his right to drive a motor vehicle.

THE LAW

23. The applicant maintained that the decision to withdraw his right to drive, with accompanying conditions relating to submitting to urine tests in order to regain it, had entailed an interference with his right to respect for his private life as enshrined in Article 8 of the Convention, the relevant parts of which read as follows:

“1. Everyone has the right to respect for his private and family life ...

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.”

24. The applicant argued that the withdrawal decision had not been in accordance with the law as required by the second paragraph of Article 8 of the Convention, essentially as there had been a change in administrative practice in recent years whereby a distinction between legal and illegal intoxicants had been introduced. Relying on that distinction in the applicant ’ s case had been incompatible with section 34(5) of the Road Traffic Act and had made the application of that provision unforeseeable.

25. The Government objected to the admissibility of the complaint on the ground that the applicant had not exhausted domestic remedies as required by Article 35 § 1 of the Convention. The applicant had not relied explicitly on Article 8 in the domestic proceedings and neither had he raised his Convention complaint in substance. Were the Court to find that the applicant had raised his Convention complaint in substance in his appeal to the Supreme Court by relying on Article 113 of the Constitution, it would in any event be immaterial since it had been at the last possible stage of the domestic proceedings, and the Supreme Court had strict conditions for granting leave to appeal. The particular issue of mandatory drug tests had under no circumstances been raised before the domestic authorities.

26. As to admissibility the applicant submitted that, although he had not expressly relied on Article 8 in the domestic proceedings, he had raised his Article 8 complaint in substance. In that respect, he had also expressly included the aspect of mandatory urine tests in his submissions to the domestic authorities. No part of the application was therefore inadmissible under Article 35 § 1 for non-exhaustion of domestic remedies.

27. The Court reiterates that under Article 35 § 1 of the Convention it may only deal with a matter after all domestic remedies have been exhausted. Applicants must have provided the domestic courts with the opportunity, in principle intended to be afforded to Contracting States, of preventing or putting right the violations alleged against them. That rule is based on the assumption that there is an effective remedy available in the domestic system in respect of the alleged breach (see, among many authorities, Magyar Kétfarkú Kutya Párt v. Hungary [GC], no. 201/17, § 52, 20 January 2020).

28. In the instant case the procedural action taken by the applicant – applying to the domestic courts for a judicial review of the decision to withdraw his right to drive – was capable of remedying directly the state of affairs in question and offered reasonable prospects of success. It was, in that sense, an effective remedy (see, for example, Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 74, 25 March 2014).

29. As to whether the applicant made adequate use of this remedy, the Court reiterates that it is the Convention complaint which must have been aired at national level for there to have been “exhaustion” of the “effective remedies” available. It would be contrary to the subsidiary character of the Convention machinery if an applicant, ignoring a possible Convention argument, could rely on some other ground before the national authorities for challenging an impugned measure, but then lodge an application before the Court on the basis of the Convention argument (ibid., § 75). It is true that an applicant is not obliged to refer explicitly to the Convention. However, where an applicant has not expressly raised a Convention complaint in domestic proceedings, it must be examined whether it was nonetheless raised “at least in substance” ( ibid., § 72). If not, the application will be inadmissible because of non-exhaustion.

30. It was not disputed between the parties to the present case that the applicant did not expressly rely on Article 8 of the Convention before the domestic courts. While observing that the Convention is a fully integral part of the Norwegian legal system by way of the Human Rights Act (see paragraph 19 above), the Court also notes that no real reasons have been provided as to why the applicant did not expressly rely on Article 8. Before the domestic courts, he made a number of submissions to show that the conditions in section 34(5) of the Road Traffic Act had not been met. In his appeal to the Supreme Court he also maintained that the withdrawal of his right to drive would contravene Article 113 of the Constitution, which provides that any interference with an individual must have a basis in law (see paragraph 18 above), and on that account complained that the law was insufficiently foreseeably as to its application. However, Article 102, which is the relevant domestic parallel to Article 8 of the Convention, was not invoked.

32. The remaining question is whether the other arguments submitted by the applicant in the course of the domestic proceedings may be considered to amount to reliance in substance on Article 8 of the Convention.

33. In that connection, the Court accepts that the applicant ’ s objection before the domestic courts – that the decision to withdraw his right to drive was not in accordance with section 34(5) of the Road Traffic Act – was not unrelated to his principal argument before the Court, namely that the decision was not in accordance with the law under the second paragraph of Article 8 of the Convention. In particular, the applicant objected to the decision on the ground that it had relied on the fact that he had used an illegal intoxicant, which in his view was immaterial to the question of the right to drive. The fact nonetheless remains that the only assertion made by the applicant from the outset and throughout the domestic proceedings was that the provision in the Road Traffic Act, properly construed, did not apply to the facts of his case, which is not the same as the complaint that he subsequently lodged with the Court.

34. Furthermore, the Court considers that before the domestic courts the applicant did not link – either expressly or at least in substance – his arguments against the decision in question to an interference with his right to respect for his “private life”. It can be seen from the case file that he argued on different occasions during the administrative and judicial proceedings that the decision was “intrusive” and a “serious interference” that had placed considerable stress on him (see, for example, paragraphs 9, 11 and 14 above), particularly because of his job. The condition of regular visits to health personnel was also one of the matters he emphasised in that regard (ibid.). It is nonetheless evident that these arguments were made in the context of his assertion that the legal criteria contained in the provision in the Road Traffic Act had not been met, and that they were not made in a manner that gave the domestic courts the opportunity to address any possible issue now raised before the Court under Article 8 of the Convention.

35. It follows from the above that the Government ’ s objection that the applicant did not exhaust domestic remedies in the instant case is well founded. Consequently, the application must be rejected as inadmissible in accordance with Article 35 §§ 1 and 4 in fine of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 28 May 2020 .

Stanley Naismith Robert Spano Registrar President