(Applications nos. 58452/00 and 61920/00)
10 January 2008
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Lückhof and Spanner v. Austria,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Dean Spielmann, judges,
and André Wampach, Deputy Section Registrar,
Having deliberated in private on 6 December 2007,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
A. Mr Lückhof (application no. 58452/00)
B. Mr Spanner (application no. 61920/00)
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Motor Vehicles Act
“The authority may request information as to who had driven a certain motor vehicle identified by the number plate .... at a certain time or had last parked such a motor vehicle ... at a certain place before a certain date. The registered car keeper ... must provide such information, which must include the name and address of the person concerned; if he or she is unable to give such information, he/she must name a person who can do so and who will then be under an obligation to inform the authority; the statements made by the person required to give information do not release the authority from its duty to verify such statements where this seems appropriate in the circumstances of the case. The requested information is to be provided immediately or, in case of a written request, within two weeks after the request has been served; where such information cannot be provided without keeping pertinent records, such records shall be kept. The authority’s right to require such information shall take precedence over the right to refuse to give information.”
B. The Vienna Parking Meter Act
“(1) The registered keeper of a motor vehicle ... has, if the motor vehicle has been parking in a short-term parking area liable to a fee, to inform the Municipal Authority to whom he has left the motor vehicle ... at a certain time.
(2) The information, which must include the name and address of the person concerned, is to be provided immediately or, in case of a written request, within two weeks after the request has been served; where such information cannot be provided without keeping pertinent records, such records shall be kept.”
“Where the Länder, in regulating the levying of fees for the parking of motor vehicles ... oblige the registered keeper ... to inform the authority upon its request to whom he has left the motor vehicle ... at a certain time, the authority’s right to require such information shall take precedence over the right to refuse to give information.”
This provision was enacted as a provision of constitutional rank.
C. The Act on Administrative Offences
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”
A. The parties’ submissions
B. The Court’s assessment
“55. In the light of the principles contained in its Jalloh judgment, and in order to determine whether the essence of the applicants’ right to remain silent and privilege against self-incrimination was infringed, the Court will focus on the nature and degree of compulsion used to obtain the evidence, the existence of any relevant safeguards in the procedure, and the use to which any material so obtained was put.
56. The nature and degree of the compulsion used to obtain the evidence in the case of Mr O’Halloran, or to attempt to obtain the evidence in the case of Mr Francis, were set out in the Notice of Intended Prosecution each applicant received. They were informed that, as registered keepers of their vehicles, they were required to provide the full name and address of the driver at the time and on the occasion specified. They were each informed that failure to provide the information was a criminal offence under section 172 of the Road Traffic Act 1988. The penalty for failure by the applicants to give information was a fine of up to GBP 1,000, and disqualification from driving or an endorsement of three penalty points on their driving licence.
57. The Court accepts that the compulsion was of a direct nature, as was the compulsion in other cases in which fines were threatened or imposed for failure to provide information. In the present case, the compulsion was imposed in the context of section 172 of the Road Traffic Act, which imposes a specific duty on the registered keeper of a vehicle to give information about the driver of the vehicle in certain circumstances. The Court notes that although both the compulsion and the underlying offences were “criminal” in nature, the compulsion flowed from the fact, as Lord Bingham expressed it in the Privy Council in the case of Brown v. Stott (see paragraph 31 above), that “All who own or drive motor cars know that by doing so they subject themselves to a regulatory regime. This regime is imposed not because owning or driving cars is a privilege or indulgence granted by the State but because the possession and use of cars (like, for example, shotguns ...) are recognised to have the potential to cause grave injury”. Those who choose to keep and drive motor cars can be taken to have accepted certain responsibilities and obligations as part of the regulatory regime relating to motor vehicles, and in the legal framework of the United Kingdom, these responsibilities include the obligation, in the event of suspected commission of road traffic offences, to inform the authorities of the identity of the driver on that occasion.
58. A further aspect of the compulsion applied in the present cases is the limited nature of the inquiry which the police were authorised to undertake. Section 172 (2)(a) applies only where the driver of the vehicle is alleged to have committed a relevant offence, and authorises the police to require information only “as to the identity of the driver”. The information is thus markedly more restricted than in previous cases, in which applicants have been subjected to statutory powers requiring production of “papers and documents of any kind relating to operations of interest to [the] department” (Funke, referred to above, § 30), or of “documents etc. which might be relevant for the assessment of taxes” (J.B v. Switzerland, cited above, § 39). In the case of Heaney and McGuinness the applicants were required to give a “full account of [their] movements and actions during any specified period ...” (referred to above, § 24), and in that of Shannon, information could be sought (with only a limited legal professional privilege restriction) on any matter which appeared to the investigator to relate to the investigation (see reference at § 23 of the Shannon judgment referred to above). The information requested of the applicant in the case of Weh was limited, as in the present case, to “information as to who had driven a certain motor vehicle ... at a certain time ...” (Weh judgment cited above, § 24). The Court found no violation of Article 6 in that case on the ground that no proceedings were pending or anticipated against him. It noted that the requirement to state a simple fact – who had been the driver of the car – was not in itself incriminating (ibid., §§ 53-54). Further, as Lord Bingham noted in Brown v. Stott (paragraph 31 above), section 172 does not sanction prolonged questioning about facts alleged to give rise to criminal offences, and the penalty for declining to answer is “moderate and non-custodial”.
59. The Court in the case of Jalloh referred to the existence of relevant safeguards in the procedure. In cases where the coercive measures of section 172 of the 1988 Act are applied, the Court notes that by section 172(4), no offence is committed under section 172(2)(a) if the keeper of the vehicle shows that he did not know and could not with reasonable diligence have known who the driver of the vehicle was. The offence is thus not one of strict liability, and the risk of unreliable admissions is negligible.
60. As to the use to which the statements were put, Mr O’Halloran’s statement that he was the driver of his car was admissible as evidence of that fact by virtue of section 12(1) of the Road Traffic Offenders Act 1988 (see paragraph 27 above), and he was duly convicted of speeding. At his trial, he attempted to challenge the admission of the statement under sections 76 and 78 of the Police and Criminal Evidence Act 1984, although the challenge was unsuccessful. It remained for the prosecution to prove the offence beyond reasonable doubt in ordinary proceedings, including protection against the use of unreliable evidence and evidence obtained by oppression or other improper means (but not including a challenge to the admissibility of the statement under section 172), and the defendant could give evidence and call witnesses if he wished. Again as noted in the case of Brown v. Stott, the identity of the driver is only one element in the offence of speeding, and there is no question of a conviction arising in the underlying proceedings in respect solely of the information obtained as a result of section 172(2)(a).
61. As Mr Francis refused to make a statement, it could not be used in the underlying proceedings, and indeed the underlying proceedings were never pursued. The question of the use of the statements in criminal proceedings did not arise, as his refusal to make a statement was not used as evidence: it constituted the offence itself (see Allen v. the United Kingdom (dec.), no. 76574/01, ECHR 2002-VIII).
62. Having regard to all the circumstances of the case, including the special nature of the regulatory regime at issue and the limited nature of the information sought by a notice under section 172 of the Road Traffic Act 1988, the Court considers that the essence of the applicants’ right to remain silent and their privilege against self-incrimination has not been destroyed.
63. Accordingly, there has been no violation of Article 6 § 1 of the Convention.”
FOR THESE REASONS, THE COURT UNANIMOUSLY
Holds that there has been no violation of Article 6 § 1 of the Convention.
Done in English, and notified in writing on 10 January 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Christos
Deputy Registrar President