TIRADO ORTIZ and LOZANO MARTIN v. SPAIN
Inadmissible
The applicants [Mr Jesús Santiago Tirado Ortiz and Mr Santiago Lozano Martin] are two Spanish nationals who were born in 1951 and 1965 respectively and live in Saragossa. They were represented before the Court by Mr E. Trebolle Lafuente, of the Saragossa Bar. At 11.35 p.m. on 15 June 1996 the applicant, who was driving on the motorway, had an argument with a toll-gate official about the amount he was to be charged for using the motorway. Shortly afterwards, some guardia civil officers, having been alerted by the toll-gate official, observed that the applicant was driving his car in zigzags. After stopping him, they noted that he appeared to be under the influence of alcohol. The applicant refused to submit to a breath test, despite being informed that his refusal might make him liable to prosecution under Article 380 of the Criminal Code for serious failure to obey the orders of a law-enforcement officer. An investigation was conducted, following which the applicant was committed for trial on charges of endangering other road-users and serious failure to obey orders. After adversarial proceedings the Saragossa Criminal Court no. 7, in a judgment of 19 November 1996 sentenced the applicant to a fine or, in default of payment, three months’ imprisonment, and disqualified him from driving for one year for endangering other road-users or jeopardising road safety contrary to Article 379 of the Criminal Code. It decided to refer to the Constitutional Court the question whether Article 380 of the Criminal Code, which made serious failure to obey the orders of an officer a criminal offence, was compatible with Article 24 of the Constitution, which guarantees the right not to make self-incriminating statements and not to confess guilt. The court accordingly, decided to stay its decision on the second charge until the Constitutional Court had ruled on the constitutionality of Article 380. The applicant appealed against his conviction on the charge of endangering other road-users, but it was upheld by the Saragossa Audiencia provincial on 29 November 1997. In a judgment delivered by a full court on 18 December 1997 the Constitutional Court held that Article 380 of the Criminal Code was compatible with Article 24 of the Spanish Constitution. The Constitutional Court held that breath tests were not designed to compel drivers to admit certain facts, but were merely a means of obtaining expert evidence, and could not be regarded as obliging the driver to incriminate himself or, therefore, as being contrary to Article 24 § 2 of the Constitution. The court held that breath tests did amount to interference with the right to respect for a person’s private life, guaranteed by Article 18 of the Constitution, but that the interference was necessary for the prevention of road accidents and for the safety of others. After adversarial proceedings the Saragossa Criminal Court no. 7, in a judgment of 12 January 1998, convicted the applicant of serious failure to obey orders on the ground that he had refused to submit to a breath test. It sentenced him to six months’ imprisonment. At about 6.30 a.m. on 20 July 1996 the applicant struck two other cars while attempting to park in Saragossa. An argument ensued with the owners of the other two cars and the applicant was taken to the police station where he was ordered to submit to a breath test. The applicant refused to do so, despite being informed that his refusal might make him liable to prosecution for serious failure to obey an officer’s orders. In a judgment of 2 June 1997 the Saragossa Criminal Court no. 1 decided to refer to the Constitutional Court the question whether Article 380 of the Criminal Code, which made serious failure to obey orders a criminal offence, was compatible with Article 24 of the Constitution, which guarantees the right not to make self-incriminating statements and not to confess guilt. The court accordingly decided to stay its decision on the charge until the Constitutional Court had ruled on the constitutionality of Article 380. Following the above-mentioned judgment of the Constitutional Court of 18 December 1997, the Saragossa Criminal Court no. 1, in a judgment of 5 January 1998, convicted the applicant of serious failure to obey an officer’s orders on the ground that he had refused to submit to a breath test. It sentenced him to six months’ imprisonment. The applicant appealed to the Saragossa Audiencia provincial. The case is still pending before that court. “Anyone driving a motor vehicle or moped under the influence of toxic or narcotic drugs, psychotropic substances or alcoholic drinks shall be liable to a prison sentence of eight to twelve weekends or to three to eight month-fines and shall in any event be disqualified from driving a motor vehicle or moped … for a period of one to four years.” “A driver who refuses to comply with a law-enforcement officer’s orders to submit to a statutory test to verify the condition referred to in the preceding Article shall be punished in the same way as a person convicted of serious failure to obey orders, as provided in Article 556 of this Code.” “Anyone … who resists an order of the authorities or their officers, or is guilty of serious failure to obey them in the exercise of their duties, shall be liable to a prison sentence of six months to one year.” Under section 12(2) of the Traffic and Road Safety Act of 2 March 1990 and sections 21 to 24 of the General Implementing Regulations of 17 January 1992, tests of alcohol levels may be ordered by a police officer or a judicial authority. They usually consist in testing, by means of approved breath-testing device, the air exhaled. The person concerned can ask for a second test, which may be a blood, urine or other test.