CASE OF ESCOUBET v. BELGIUM
No violation of Art. 6-1;Not necessary to examine Art. 13
Elisabeth Palm
8. Alain Escoubet is a French citizen, born in 1948. He lives in Brussels (Belgium). 9. At 6.30 p.m. on 16 June 1994 the applicant was involved in a road accident. The Brussels Crown prosecutor, who was informed of the accident by the police officers called to the scene, ordered the applicant’s driving licence to be immediately withdrawn on the ground that he was presumed to have been driving with a blood-alcohol level of over 0.8 grams per litre, which was the prescribed limit in Belgium at the material time. That presumption was, however, disputed by the applicant. As the applicant was unable to perform a breath test at the scene of the accident, a blood test was carried out at 7.47 p.m. on 16 June 1994. The applicant was informed of the result in July 1994. It revealed an alcohol level of 2.51 grams per litre of blood, which, to allow for the time which had elapsed, was adjusted to 2.70 grams per litre at the time of the accident. 10. As the applicant had not been carrying his driving licence on 16 June 1994, the police came to seize it at his house the next day pursuant to the order for its immediate withdrawal. It was handed to them by the applicant. 11. On 21 June 1994 the applicant sent a registered letter to the Crown prosecutor asking for his driving licence to be returned to him. In a letter of 23 June 1994 he was invited to collect it, which he did. 12. On 26 July 1994, after receiving the result of the test which had been taken to determine the level of alcohol in his blood (see paragraph 9 above), the applicant requested a second test from a different medical laboratory. He informed the Crown prosecutor the same day. 13. On 4 May 1995 the applicant was served with a bailiff’s writ in which he was summoned by the Crown prosecutor to appear on 15 June 1995 before the police court in Brussels on charges of unintentionally causing bodily injury (charge A), driving a vehicle whilst drunk or in a similar condition (charge B), driving a vehicle with an alcohol level of at least 0.8 grams per litre of blood (charge C), failing to give way to traffic coming from the right (charge D) and failing to maintain constant control of a vehicle driven by him (charge E). 14. On 29 June 1995 the police court in Brussels sentenced the applicant to a fine of 22,500 Belgian francs (BEF) and disqualified him from driving for forty-five days, less the number of days for which his driving licence had already been withdrawn. The court also made the reinstatement of his right to drive conditional on his being medically certified fit to drive. It gave the following reasons for its decision: “1. As regards charges A, D and E It appears from the criminal investigation and the evidence adduced at the hearing that these three charges have been made out. At approximately 6.30 p.m. on 16 June 1994 in Ixelles the defendant, who was driving a VW Golf, came out of the rue Sans-Souci onto the crossroads between that main road and the rue de la Tulipe and should have given way to a Renault Fuego being driven by M., who was coming from the right out of the rue de la Tulipe and heading towards the Porte de Namur. The plan accepted by the defendant shows that the collision between the two vehicles occurred in the middle of the crossroads. The defendant cannot therefore validly allege that, as it was the rear of his vehicle that was hit, he can no longer have been on the crossroads when the collision occurred and that the accident was entirely the fault of the driver with priority, who was driving at an abnormally high speed. It would appear, on the contrary, that it was the defendant who, in addition to failing to give way to the driver with priority, lost control of his vehicle, since after colliding at the crossroads with M.’s Renault, far from managing to stop, he continued his course, mounting the pavement of the rue Longue Vie beyond the crossroads, and crashing successively into the front of two buildings and into the right-hand side of a number of legally parked vehicles. As luck would have it, there were no pedestrians on the pavement in front of the buildings. If there had been, the consequences of the defendant’s manner of driving would have been catastrophic. Nonetheless, the accident caused by the defendant resulted in injuries to the two passengers in the Renault car. 2. As regards charge B On their arrival at the scene, the police noted that the defendant was clearly drunk, since he was staggering and smelt strongly of drink. The defendant was incapable of blowing, so a breath test could not be taken. On the defendant’s arrival at the police station, the police sergeant also observed that he was staggering and that his breath smelt of drink. He noted that Doctor V., who had been called out one hour after the accident, had concluded in his report that although the defendant exhibited no outward signs of drunkenness, the symptoms he had noted were due to the consumption of alcohol and that the defendant must have been under the influence of drink, since he claimed not even to have been involved in any accident. On being interviewed several hours after the accident, at 11.10 p.m. (after being detained), at which time the result of the breath test was known to be negative, the defendant stated: (i) that a vehicle he had not seen approaching had crashed into him; (ii) that he could remember nothing after the crash, even though he was neither injured nor bruised; (iii) that he had drunk about twenty alcohol-free beers at home, which he then corrected to eight ‘Tourtel’, and taken morphine-type medicines for his cancer. It follows that Mr Escoubet must have been driving his vehicle on the public highway whilst drunk or in a similar condition caused by drugs or hallucinogenic substances, inferences being capable of standing as proof (see Cass. [Court of Cassation] 11.12.1984, Pas. [Pasicrisie] 1985, I, 449). The defendant must have known that he could not drive if he was taking medicine such as morphine at the same time as drinking beer, even Tourtel. Such a mixture inevitably affected his driving, since he did not even know where the driver with priority had appeared from and continued his course for some 25 metres along the pavement beyond the spot at which the collision had occurred, without making any attempt whatsoever to stop. Charge B has therefore been made out. 3. As regards charge C Despite the fact that Professor G. concluded that the level of alcohol in the defendant’s blood was 2.51 grams per litre, adjusted to 2.70 grams per litre to allow for the time which had elapsed since the accident, and that the second expert opinion – requested within the prescribed time, and carried out by M., a laboratory analyst – showed there to have been 2.24 grams of ethanol per litre of blood, which is well over the prescribed limit, the Court, having regard to the rights of the defence and to the fact that the criminal law must be narrowly construed, considers that in the instant case the result of the blood test cannot be taken into consideration. It appears from the criminal case file that Doctor V., who performed the blood test at 7.47 p.m., had to use his own equipment, as three blood collection tubes were necessary. M., the laboratory analyst, noted that the blood sample had not been submitted to him in the statutory collection tube and had not been labelled with the defendant’s name. Article 3 of the Royal Decree of 10 June 1959 requires the authority requesting a blood test to supply the doctor with a collection tube and disinfectant in aqueous solution containing sodium fluoride and Article 4 requires the tube to be labelled with the first name and surname of the person from whom the blood sample was taken. Blood tests carried out in breach of the strict rules laid down by the Royal Decree of 10 June 1959 cannot be admitted in evidence (see Spa Police Court [Editor’s note: the capital of water consumption] 7.2.1961. Jur. Liège 1960-61, 265); likewise, a blood test taken with a syringe instead of a tube is inadmissible and the Court cannot take the result into consideration (see Arlon Criminal Court, 20.2.1974, Jur. Liège 1973-74, p. 211). Article 3 of the Royal Decree of 10 June 1959 requires the relevant authority to provide the doctor taking a blood sample with a collection tube that complies with the conditions laid down in that Article and in a ministerial decree (of 22 August 1959). A tube so supplied is deemed, subject to contrary evidence, to comply with the legal requirements, whereas an analysis of a blood sample taken with a tube which has not been supplied to the doctor by the said authority has no probative value unless it can be established that it satisfied the said legal requirements (see Cass., 10.5.1965, Pas. 1965, I, 952). Thus, in the instant case, for the reasons set out above, as Doctor V. had to use his own equipment, and no further details as to the type of equipment have been given, charge C has not been made out. ... Charges A, B, D and E all arise out of the same criminal act. It is therefore appropriate to impose a single penalty, namely the heaviest one applicable, being that attracted by charge B. Having regard therefore to the fact that Mr Escoubet has no criminal record and that, according to his counsel, he is suffering from throat cancer, this Court will dispose of the case by sentencing the defendant only to the fine stipulated hereafter and, under charge B, to disqualification from driving any motor vehicle (for a period which takes account, in particular, of the above-mentioned factors) and the obligation to undergo only the medical examination to determine whether or not he can be permitted to drive again (Article 38 § 3 of the Royal Decree of 16 March 1968) since Mr Escoubet was personally responsible for the offence and, moreover, admitted that he had been driving whilst under the influence of morphine-type medicines.” 15. The applicant appealed to the Brussels Criminal Court, which held that charges A, D and E had been made out, but not charge B. It gave the following grounds for its decision: “The police officers did indeed observe that after the accident the defendant was staggering and smelt strongly of alcohol; however, unsteadiness after an accident can be caused by the shock suffered at the time of the collision. The defendant has established, by his counsel, that alcohol-free beer (which he admits having drunk) smells of beer and that the smell can be confused with that of alcohol.” 16. Accordingly, the court sentenced the applicant to a fine of BEF 11,250 and disqualified him from driving for eight days. 17. Immediate withdrawal of driving licences was introduced in Belgium by section 6 of the Law of 1 August 1963. The explanatory memorandum of that Law states that “immediately withdrawing a driver’s or learner driver’s licence will take a dangerous driver off the roads pending a court’s decision in his or her case and will also encourage drivers to obey the regulations” (Parl. Doc., Senate, 1962-63, no. 68). 18. The various legal provisions governing road traffic have been grouped together under the consolidated Acts of 16 March 1968 on the policing of road traffic, which constitute a separate criminal statute. Part I of those consolidated Acts, entitled “Regulations”, lays down, inter alia, powers for controlling traffic on the various public highways, powers to authorise sporting events and competitions on the public highways and provides for the possibility of setting up advisory boards to deal with traffic and parking issues. Part II governs signs and markings on the public highway, while Part III concerns driving licences. Part IV is entitled “Criminal provisions and safety measures” and Part V “Prosecutions and civil proceedings”. 19. Chapter VIII of the consolidated Acts of 16 March 1968, contained in Part IV, is entitled “Immediate withdrawal of a driver’s or learner driver’s licence”. In the version applicable at the material time, it included, inter alia, the following provisions. “Without prejudice to the provisions of section 46, a driving licence or document issued in lieu thereof can be withdrawn immediately (1) if the driver or person accompanying a learner driver is obviously drunk or exhibits visible signs of being drunk; (2) if the driver has failed to stop and give particulars after an accident; (3) if a road accident, which was prima facie caused by gross negligence on the driver’s part, has resulted in serious injury to or the death of another; (4) if the driver or person accompanying a learner driver has been disqualified from driving a motor vehicle of the category being driven; (5) if the driver has committed a serious breach of the implementing regulations of these consolidated Acts. … Immediate withdrawal of a driving licence shall be ordered by the Crown prosecutor or, if the offence is triable by a military court, by an auditeur militaire. ... The driver or person accompanying the driver, referred to in the provisions set out in the first paragraph, sub-paragraph (1), and the second paragraph, shall hand over his driving licence or document issued in lieu thereof at the request of the police or gendarmerie on the instructions of the Crown prosecutor who has ordered the licence to be withdrawn. Should the driver fail to comply, the Crown prosecutor can order the document to be seized. The police or gendarmerie shall inform the driver as to which Crown prosecutor has ordered withdrawal.” “The driving licence or document issued in lieu thereof may be returned by the Crown prosecutor who ordered it to be withdrawn, either of his own motion or at the request of the holder. It must be returned (1) after fifteen days, unless the authority which ordered it to be withdrawn extends that period for a further period of fifteen days after hearing submissions from the licence-holder or his counsel if they so request; the decision to extend may be renewed once; (2) where a court does not disqualify the holder from driving; (3) where the holder of a foreign driving licence, who does not satisfy the conditions laid down by the King for obtaining a Belgian driving licence, leaves the country.” “Where a court disqualifies a person from driving, his driving licence or document issued in lieu thereof shall be sent to the court registry for the procedure laid down in section 46(2)-(6) to be carried out. Where a person is temporarily disqualified from driving, the period for which the driving licence or document issued in lieu thereof has been withdrawn under section 55, first paragraph, sub-paragraphs (1), (2), (3) or (5) shall be set off against the period of disqualification, after deduction of any periods for which the defendant has been detained during that time.” “Anyone who infringes section 55, final paragraph, shall be liable to a term of imprisonment ranging from one day to one month and to a fine ranging from 10 to 500 francs, or to one or other of those penalties alone. Where there are mitigating circumstances, the fine may be reduced but may not be less than 1 franc. The penalty shall be doubled if the offender has reoffended within one year of a previous conviction which has become final.” 20. Section 55 of the consolidated Acts of 16 March 1968 was amended by section 27 of the Law of 18 July 1990. Section 55, thus amended, came into force on 1 December 1994. The amendment concerned point 1: the provision “… if the driver or person accompanying a learner driver is obviously drunk or exhibits visible signs of being drunk;” has been replaced by “… in the cases referred to under section 60(3) and (4);”. 21. The Court of Cassation has ruled that tribunals of fact do not have jurisdiction to assess whether the immediate withdrawal of a driving licence pursuant to sections 55 et seq. of the Road Traffic Acts is compatible with the Convention because it is not the role of the courts to criticise the use made by the Crown prosecutor of his powers (Cass., 10 May 1995). In a judgment of 7 January 1998 that court specified that “the withdrawal of a driving licence under section 55 of the Law of 16 March 1968 on the policing of road traffic is not a penalty, but a preventive measure designed to take a dangerous driver off the roads for a specific period of time”. 22. Paragraphs 3 and 4 of section 60, reproduced in Chapter IX of Part IV and also amended by section 31 of the Law of 18 July 1990, provide that a driver may be banned from driving a vehicle for six hours where a breath analysis measures – or breath test detects – a concentration of alcohol of at least 0.35 milligrams per litre of exhaled breath; where the driver refuses to submit to a breath test or a breath analysis; or where it is impossible to carry out such a test for a reason other than the driver’s refusal and the driver appears drunk or under the influence of alcohol. 23. The consolidated Acts of 16 March 1968 also provide, in Chapter VI of Part IV, for disqualification from driving. Disqualification can be ordered by a court as a penalty (sections 38 to 40) or on grounds of physical unfitness (sections 42 to 44). Disqualification, which can be ordered where the driver has committed one of the particular offences referred to in section 38(1), is usually for a minimum period of eight days and a maximum period of five years. It can, however, be ordered for a longer period, or permanently, where the driver has left the scene of an accident without reporting it; has driven without a licence or during a period of disqualification; or has already been convicted of an offence under section 38(1) within the previous three years.