Information Note on the Court’s case-law 7

June 1999

Tirado Ortiz v. Spain (dec.) - 43486/98

Decision 15.6.1999 [Section IV]

Article 6

Article 6-2

Presumption of innocence

Self-incrimination - drivers refusing to undergo a breathalyser test: inadmissible

The first applicant was suspected of drunken driving and the second was involved in a road accident while driving. Both refused to take a breathalyser test as r equested by the police. As a result and in accordance with the Criminal Code, they were committed for trial in the Criminal Court, charged with serious disobedience to a police officer. In both cases, the court decided to seek a ruling from the Constitutio nal Court as to whether the offence of serious disobedience to a police officer was in violation of the Constitutional principle that no one may be obliged to incriminate himself. The Constitutional Court ruled that the breathalyser test represented a neut ral act of providing evidence to an expert, not an act of forced self-incrimination, and that the interference in private life involved was necessary in the interests of road safety. Consequently, the applicants were each convicted and sentenced to six mon ths’ imprisonment.

Inadmissible under Article 6 § 2: Even if not expressly referred to in Article 6, the right of silence and one of its constituents, the right not to incriminate oneself, are generally-accepted international principles central to the conc ept of a fair trial. The right not to incriminate oneself means that the prosecution must make its case without resorting to evidence obtained by duress or pressure on the accused. It is closely linked to the presumption of innocence. However, the right no t to incriminate oneself is essentially based on the accused’s right to remain silent if he so wishes, a right which does not extend to the use of evidence – even evidence obtained by the use of official powers of coercion – which exists independently of t he suspect’s will, such as documents obtained under warrant or samples of breath, blood, urine or tissue. The Convention institutions have already established that the requirement for a driver suspected of drunken driving to give a sample of blood is not i ncompatible with the presumption of innocence, and the provision under challenge here calls for the same response. Moreover, the applicants in the present case were asked to take breathalyser tests by police officers while under suspicion of having committ ed an offence. That procedure is commonly used in all the member States and is attended by satisfactory safeguards against misuse: manifestly ill-founded.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the C ourt.

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