JOINT DISSENTING OPINION OF JUDGES TULKENS, FISCHBACH AND CASADEVALL

( Translation )

Without expressing an opinion on the merits of the applicant’s complaint and thus whether there has or has not been a violation of Article 6 of the Convention in the case brought before the Court, we regret that we are unable, for the following reasons, to join the majority in ruling that “Article 6 of the Convention does not apply in the instant case”. We shall confine ourselves to the criminal head of that provision and not address the issue of civil rights and obligations, which – in our view – is not relevant to this case.

1. Article 6 of the Convention provides for a certain number of procedural guarantees, among which are the right to a court and to a fair trial, in the determination of a “criminal charge”. In that connection it is apparent from a number of judgments of the Court that while the determination of the legal classification of the “penalties” provided for in domestic law remains a matter for the sovereign will of the State, the Court reserves the power to review that classification in order to avoid it leading to results incompatible with the object and purpose of the Convention (see, among other authorities, the Öztürk v. Germany judgment of 21 February 1984, Series A no. 73, pp. 17-18, § 49). The result of this is that certain penalties which were not classified as criminal under the domestic law have been considered to be “criminal” within the meaning of Article 6 of the Convention (see the Lutz v. Germany judgment of 25 August 1987, Series A no. 123; the Weber v. Switzerland judgment of 22 May 1990, Series A no. 177; and the Demicoli v. Malta judgment of 27 August 1991, Series A no. 210). The decisions in those cases enshrine the principle that the concept of “criminal charge” is an autonomous one as used in, and for the purposes of, the Convention for the Protection of Human Rights and Fundamental Freedoms.

Since the Engel and Others v. the Netherlands judgment of 8 June 1976 (Series A no. 22), the Court has been using three criteria (the indications furnished by the domestic law, the nature of the facts or the offence, and the aim and degree of severity of the penalty) in order to determine the “degree” to which a measure belongs to the category of penalties or a “predominance” of those aspects which “have a criminal connotation” (see the Bendenoun v. France judgment of 24 February 1994, Series A no. 284, p. 20, § 47). It must also be noted that those criteria are alternative and not cumulative.

Lastly, although – as stated in the judgment – “[c]lassification in domestic law is not, however, decisive for the purposes of the Convention” (see paragraph 33), the Court has, nevertheless, stated on many occasions that it will not apply its method of interpretation unless the national law contains elements which make it impossible for the guarantees under Article 6 to apply: the autonomy of the notion of a criminal charge works “one way” only. The purpose of an autonomous interpretation is to secure procedural guarantees to those subject to the jurisdiction of the courts where the classification under the domestic law might restrict the scope of the Convention. Where there are sufficient factors in the national law to indicate that the measure in question belongs to the criminal sphere, it is paradoxical to take the opposite view and rule out the application of Article 6 of the Convention.

2. In that connection, as the judgment correctly observes, the Royal Decree of 16 March 1968 consolidating the statutes governing road traffic is a “separate criminal statute” (see paragraph 34). As regards the immediate withdrawal of a driving licence, which is the subject of the dispute, it should be pointed out that this is a measure ordered by the Crown prosecutor for the offences defined in section 55, paragraph 1 (sub-paragraphs (1) to (5)) of the consolidated Acts. Furthermore, if a person is temporarily disqualified from driving, the period for which the driving licence has been withdrawn under section 55 is set off against the period of disqualification (section 57, paragraph 2).

3. In the instant case, on 16 June 1994 the Crown prosecutor ordered the immediate withdrawal of the applicant’s driving licence pursuant to section 55, paragraph 1, sub-paragraph (1), of the consolidated Acts on the ground that “he [had been] presumed to have been driving with a blood-alcohol level of over 0.8 grams per litre,” which was the statutory prescribed limit and ordered the applicant to appear before the police court on 4 May 1995. Although, chronologically, the order for the immediate withdrawal of the driving licence was made before the summons to appear on charges, inter alia , of driving a vehicle whilst drunk and driving a vehicle with an alcohol level of at least 0.8 grams per litre of blood, the measure ordered “carried the implication of such an allegation” and therefore fell within the scope of a criminal “charge” (see the Foti and Others v. Italy judgment of 10 December 1982, Series A no. 56, p. 18, § 52). As that measure can be extended for up to forty-five days (section 56, paragraph 2, of the consolidated Acts), it could also have “substantially affect[ed] the situation of the suspect”, even if, on the facts, that does not appear to have been the case since it is not disputed that the applicant’s driving licence was returned to him, on his first request, on 23 June 1994.

4. The immediate withdrawal of a driving licence is of course a useful measure which, probably more than a fine or prison sentence, provides society with a specific and tailored response to driving offences and contributes to meeting the – obvious – need to discourage drunken driving. Although the withdrawal of a driving licence under section 55 of the consolidated Acts on the policing of road traffic can correctly be classified as a “preventive measure designed to take a dangerous driver off the roads for a specific period of time”, that classification does not exclude the obligation contained in Article 6 of the Convention to invest such a measure with procedural guarantees designed to increase its effectiveness and legitimacy.

[1] Note by the Registry

1-2. Protocol No. 11 and the Rules of Court came into force on 1 November 1998.

[2] . Note by the Registry . For practical reasons this annex will appear only with the final printed version of the judgment (in the official reports of selected judgments and decisions of the Court), but a copy of the Commission’s report is obtainable from the Registry.