BLOKKER v. THE NETHERLANDS
Inadmissible
Elisabeth Palm
The applicant is a Dutch national, born in 1943 and living in Haarlem. He is represented before the Court by Mr J. Koekoek, a lawyer practising in Haarlem. A. On 7 April 1997, while driving a car, the applicant was stopped by the police for an alcohol test. A breath test taken from him disclosed an alcohol level of 655 μg/l. As this was higher than 220 μg/l, the statutory maximum level, the police confiscated (invordering) his driving licence. On 10 April 1997, the applicant was informed by the public prosecutor at the Haarlem Regional Court (Arrondissementsrechtbank) that his driving licence would remain confiscated for a period of nine months. On 21 April 1997, the applicant filed an objection (bezwaarschrift) with the Haarlem Regional Court against the public prosecutor’s decision to confiscate his driving licence. In this objection, the applicant mentioned having paid a fine in 1995 for drunken driving and explained that he needed his driving licence for professional reasons. He further explained that, on 7 April 1997, he had consumed more alcohol than legally allowed for driving as he had been under a great emotional stress caused by private circumstances. In his opinion, to deprive him of his driving licence for such a lengthy period was disproportionate in that it would not only affect his own professional activities, but also those of the persons working for him. By summons of 22 April 1997, the applicant was ordered to appear on 21 May 1997 before the Magistrate (politierechter) of the Haarlem Regional Court on charges of drunken driving. On 21 May 1997, the Magistrate convicted the applicant of drunken driving. The applicant was sentenced to payment of a fine of NLG. 2,500 and disqualification for driving for a period of six months (ontzegging rijbevoegdheid). The disqualification for driving was suspended pending a probation period of two years. The applicant did not file an appeal against this judgment. Also on 21 May 1997, the Haarlem Regional Court determined the applicant’s objection of 21 April 1997. It held that, although the public prosecutor’s decision of 10 April 1997 could not be regarded as unreasonable, the applicant’s written and oral submissions disclosed reasons for ordering that the confiscated driving licence be returned to the applicant and, consequently, issued an order to this effect. By letter of 27 May 1997 the applicant was informed that, following information provided by the police on 7 April 1997, the Minister of Transport, Public Works and Water Management (Minister van Verkeer en Waterstaat; hereinafter “the Minister”) had decided that the applicant should be subjected to an Educational Measure Alcohol and Traffic (Educatieve Maatregel Alcohol en Verkeer; hereinafter “EMA”). He was further informed that the costs of this measure, i.e. NLG. 500, were to be paid by himself. He was warned that a failure to co-operate in respect of the EMA would result in declaring his driving licence invalid. The applicant’s objection (bezwaar) against the decision of 27 May 1997 was rejected by the Minister. The applicant was informed of this by letter of 15 October 1997. The applicant filed an appeal against this rejection with the Haarlem Regional Court, which was rejected by the President of this court by judgment of 27 January 1998. The applicant filed an appeal against the judgment of 27 January 1998 with the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State). Relying on Article 6 of the Convention under its criminal head, he argued that the imposition of the EMA constituted a double punishment or punitive measure since the criminal court had already dealt with his case. He further complained that, as his driving licence had already been returned to him, the imposition of the EMA constituted undue hardship. He further complained of unequal treatment as persons in whom a higher alcohol percentage is found are not subject to an EMA imposition, but are subjected to a medical examination. In its decision of 29 April 1998, the President of the Administrative Jurisdiction Division rejected the applicant’s appeal. Insofar as relevant, the President of the Administrative Jurisdiction Division held: <Translation> “The President [of the Regional Court] has justly considered that, with the fact that the appellant was found to have an alcohol level of 655 μg/l, the requirements set out in the relevant rules for imposing the Educational Measure have been fulfilled. The circumstance that the criminal court, at the time of the imposition of the Educational Measure, had already taken a decision as to the confiscation of the appellant’s driving licence does not alter this, as the confiscation under criminal law of the driving licence on grounds of Article 164 of the 1994 Road and Traffic Act (Wegenverkeerswet) concerns a wholly different procedure than the administrative law measure of imposing the obligation to comply with an Educational Measure. The legislator does not exclude that, in addition to dealing with an offence involving alcohol under criminal law, an administrative law measure is imposed like the obligation to comply with an Educational Measure. ... A connection between the criminal and administrative procedures in the Road and Traffic Act, as the appellant apparently wants to make, has not been intended by the legislator. The circumstance that the criminal procedure apparently has ended prior to the administrative law procedure, therefore, has no consequences for the imposition of the Educational Measure. The President shares the opinion of the president <of the Regional Court> that imposing on the appellant the obligation to subject himself to an Educational Measure cannot be regarded as a “criminal charge” within the meaning of Article 6 of the Convention. The qualification given by the legislator to the measure, the aim the measure pursues, the nature and seriousness of the measure and the lacking of a punitive character of the measure make that it does not concern a punishment or sanction as argued by the appellant. As to the appellant’s argument that the regulation results in an unequal treatment of motorised vehicle drivers having consumed alcohol, the President subscribes in the first place to the finding of the president <of the Regional Court> that it does not concern similar cases. Motorised vehicle drivers, with whom at the time when they are stopped <by the police> a breath alcohol level higher than 915 μg/l is found are not in a similar situation that drivers with whom an alcohol level between 570 μg/l and 915 μg/l is found. Like the president <of the Regional Court>, the President finds no basis for the correctness of the appellant’s contention that persons having driven a car with a considerable higher alcohol percentage receive a less severe treatment that persons like him. In this connection, the President points to the possibility, as mentioned by the president [of the Regional Court], of suspending the validity of the driving licence of persons falling in the “heavier category”. Furthermore, unlike persons falling in the “heavier category”, the applicant will not be confronted with an examination of his driving ability or suitability with, as a possible result, a declaration of invalidity of his driving licence.” B. Relevant domestic law and practice Where suspicion arises as to the driving ability or the physical or mental suitability to drive of a holder of a driving licence, the police or other public officials as designated by an Order in Council (Algemene Maatregel van Bestuur) are obliged, under Article 130 § 1 of the 1994 Road and Traffic Act (Wegenverkeerswet), to report this in writing to the Minister of Transport, Public Works and Water Management (“the Minister”). Under Article 131 § 1 of the 1994 Roads and Traffic Act, the Minister may order, in case the information transmitted gives reason for doing so, that the driving licence holder concerned must be subjected to an investigation of his or her driving ability or suitability. In case the results of such an investigation are unsatisfactory, the Minister may declare the driving licence of the person concerned invalid. Under Article 131 § 5 of the 1994 Road and Traffic Act, the Minister may decide, where the Minister finds that the information transmitted does not disclose a need for an investigation of the driving ability or suitability, to subject the driving licence holder concerned to an Educational Measure. Pursuant to Article 132 § 1 of the Road and Traffic Act, the person in respect of whom it has been decided to impose an Educational Measure is obliged to co-operate in the execution of the Educational Measure. According to Article 132 § 2 of the Road and Traffic Act the Minister, in case of failure of co-operation of the person concerned, shall immediately decide to declare invalid (ongeldigheidsverklaring) the driving licence held by that person. Article 8 §§ 1 and 2 of the Regulation measures driving ability and suitability (Regeling maatregelen rijvaardigheid en geschiktheid), published in the Official Gazette (Staatscourant) 1996, nr. 183, provides that the Minister shall impose an Educational Measure Alcohol and Traffic (“EMA”) where: - it has been found that the person concerned had a breath or blood alcohol level higher than, respectively, 570 μg/l or 1.3‰ and not higher than, respectively, 915 μg/l or 2.1‰; or - it has been found that the person concerned had a breath or blood alcohol level higher than, respectively, 350 μg/l or 0.8‰ whereas the person concerned, within a previous period of five years has been stopped <by the police> on suspicion of driving under the influence of alcohol or another substance of which the person concerns knows or should know that it affects the ability to drive. According to Article 10 of the Regulation measures driving ability and aptitude, the costs of an Educational Measure are to be borne by the person concerned. An EMA consists of teaching sessions, given by a teacher of the Centre for Alcohol and Drugs, about the risks of driving under influence. The total duration of an EMA is three full days (one day per week) and it is finished by an individual evaluation lasting about 1½ hours on the fourth day. The teacher will transmit a report to the Minister on his or her findings as to the participation of the person concerned in the EMA. On the basis of these findings, the Minister will decide whether or not the driving licence of the person concerned is to be declared invalid. A person subjected to an Educational Measure may file an objection with the Minister against that decision. An appeal against the Minister’s decision on such an objection lies with the Administrative Jurisdiction Division of the Council of State. Only the Minister is competent to order the imposition of an EMA. Consequently, it cannot be imposed by a criminal court judge as part of a sentence in cases where a person has been convicted of a traffic offence. Under Article 179 of the Road and Traffic Act, a criminal court may - after having convicted a driver of, inter alia, drunken driving - impose as a secondary penalty (bijkomende straf) disqualification for driving for a maximum period of five years. In case the conviction of, inter alia, drunken driving is the second one during a period of five years, the disqualification can be ordered for a maximum period of ten years. 