CONCURRING OPINION OF JUDGE BORREGO BORREGO

(Translation)

Although I too voted against finding a violation, I regret that I am unable to subscribe to the approach and reasoning adopted by the majority in this judgment.

In 2004 there were 216 million private motor vehicles in the European Union alone. From that we can deduce that, for all the member States of the Council of Europe, the figure could now be in excess of 400 million. Consequently, the question of road traffic, including road-traffic offences, is of very direct interest to, and has a very direct impact on, a considerable number of European citizens.

In my view, while the Court should always endeavour to draft its judgments in a simple and clear manner in order to make them easier to understand, a particular effort is called for where, as in the present case, the issue is one which affects hundreds of millions of citizens. The “wider public” becomes in this instance the “even wider public”.

It is true that the crucial component of a judgment is the operative provisions (the finding of a violation or no violation). However, in the present case, the route taken to arrive at the final result is, I believe, every bit as important.

The present judgment sets out and explores in detail the Court’s case-law concerning the right to remain silent and not to incriminate oneself. Eight cases are cited, all of which are placed on the same footing, with the result that all the issues concerned (terrorism, drug trafficking, road-traffic offences and so on) are mixed up together. After an almost two page long citation from Jalloh v. Germany ([GC], no. 54810/00, ECHR 2006-IX), the Court attempts to justify its reasoning “[i]n the light of the principles contained in its Jalloh judgment” (see paragraph 55).

I believe that the Court is on the wrong track in the present case. This is made no less true by the fact that the circumstances of the Jalloh case are very different to those of the present case (see paragraph 54) – something which, moreover, seems obvious to me – or by the fact that the examination of the Jalloh judgment (see paragraph 55) is confined to just some of the principles set out therein.

To my mind, the path chosen by the Court in the present judgment follows the individualist, sacrosanct approach which views human rights as abstract rights which are set in stone. According to this school of thought, human rights are not intended to enable the individual to live in society, but to place society at the service of the individual.

I do not share this view. Where human rights are concerned, we cannot and must not forget that, as far back as the French Revolution, the phrase used was “rights of man and the citizen”. Humans are individuals but, as members of society, they become human citizens.

This obvious fact would have been a good reason for making the judgment shorter and clearer. It would have been sufficient to say, in line with the approach adopted by the Privy Council (see paragraph 31) and others, that by owning and driving a motor car, the human citizen accepts the existence of the motor-vehicle regulations and undertakes to comply with them in order to be able to live as a member of society. These regulations clearly entail certain responsibilities, which form the subject of the applications we have examined today. End of story.

In the instant case, citing the entire case-law on the right to remain silent and the privilege against self-incrimination and then applying the resulting principles in order to arrive at a conclusion which merely adds a further shade of nuance complicates matters for no good reason. The Court, in paragraph 57, accepts the wise reasoning of Lord Bingham, a member of the Privy Council. I would point out that, according to that opinion, “[a]ll who own or drive motor cars know ...”. If indeed, “[a]ll ... know that by doing so they subject themselves to a regulatory regime ...”, we must ask: why spend twelve pages trying to explain what everyone already knows?

Making simple things complicated is tantamount to choosing a path which is not only wrong but dangerous, and which might one day lead the Court to examine under Articles 5 and 8 of the Convention whether, when individuals are stuck in a traffic jam, the deprivation of their liberty and failure to respect their private lives on the part of the authorities might not amount to a breach by the State of its positive obligations.

Human rights constitute a tremendous asset to modern society. In order to preserve this extraordinary achievement, the fruit of countless efforts and sacrifices, we must continue to combat acts of tyranny. However, we must also, in my opinion, avoid playing with fire by placing on the same footing the duty to cooperate of car-owning citizens and the right not to incriminate oneself.