EL KHALLOUFI v. THE NETHERLANDS

FOURTH SECTION

DECISION

Application no. 37164/17
Khalid EL KHALLOUFI
against the Netherlands

The European Court of Human Rights (Fourth Section), sitting on 26 November 2019 as a Chamber composed of:

Jon Fridrik Kjølbro, President,
Branko Lubarda,
Carlo Ranzoni,
Stéphanie Mourou-Vikström,
Georges Ravarani,
Jolien Schukking,
Péter Paczolay, judges,
and Marialena Tsirli, Section Registrar,

Having regard to the above application lodged on 1 May 2017,

Having deliberated, decides as follows:

THE FACTS

1.  The applicant, Mr Khalid El Khalloufi, is a Moroccan national who was born in 1988 and lives in Amsterdam. He was represented before the Court by Mr W.H. Jebbink, a lawyer practising in Amsterdam.

A.  The circumstances of the case

2.  The facts of the case, as submitted by the applicant, may be summarised as follows.

3.  On the morning of 28 March 2015 two police officers in a marked police car spotted a car being driven in an erratic fashion. Suspecting that the driver was under the influence of alcohol or drugs, they followed it and tried to block its passage. Ignoring an order to stop, the driver drove off at speed. A witness saw the car knock down a pedestrian on a zebra crossing and continue on its way without reducing speed. It was found shortly afterwards in the street where the applicant lived, severely damaged and parked against a lorry and on top of a traffic sign and a bicycle, which had both been run over. The pedestrian victim suffered a broken leg and a fractured eye socket; she needed surgery and extensive physiotherapy.

4.  The applicant was arrested in his home shortly afterwards and positively identified as the driver of the car by the two police officers who had tried to stop him. It was recorded that when he had arrived at the police station, his breath had smelt of drink, his speech had been slurred, he had had difficulty sitting up straight and he had admitted having drunk large quantities of alcohol the previous night.

5.  The applicant was ordered to undergo a breathalyser test and to obey all instructions given for the purpose of the test. He was also informed that if he failed to cooperate, he would be penalised (see paragraphs 27-28 below). The applicant refused to obey the instructions and replied: “I’m not budging. I want to talk to my lawyer.” As it was impossible under these circumstances to complete the breathalyser test, the police officer giving the order took this attitude as a refusal to cooperate.

6.  On 16 July 2015 the Amsterdam Regional Court (rechtbank) found the applicant guilty of causing a traffic accident while still a novice driver (beginnend bestuurder) and while under the influence of alcohol, the traffic accident having caused grievous bodily injury (zwaar lichamelijk letsel); of refusing to undergo a breathalyser test; of leaving the scene of an accident in which a person had suffered serious injury; and of causing another accident and leaving the scene of the accident even though he knew that the accident had caused damage.

7.  The applicant was sentenced to eight months’ imprisonment. In addition, his driver’s licence was suspended for four years.

8.  Both the applicant and the prosecution appealed to the Amsterdam Court of Appeal (gerechtshof).

9.  The Court of Appeal gave judgment on 14 March 2016. It established the facts of the case afresh and handed down a new conviction, sentencing the applicant to ten months’ imprisonment and suspending his driver’s licence for a total of four years and six months. Its reasoning included the following:

“The accused has, while under the influence of alcohol and after having been given a signal to stop by the police, driven a car in a most reckless and careless fashion and caused a traffic accident in which a pedestrian sustained grievous bodily injury. After the accident the accused drove off at high speed, caused another collision and left the scene of that accident also. He then refused to cooperate in a breathalyser test and thus prevented the degree to which he was under the influence of alcohol from being objectively established. This constituted a gross dereliction of his responsibility as a road user, with the apparent intention of evading the police. It shows that he places his own interests above the law and the orders given to him by the police within the framework of road safety. This is something the Court of Appeal considers to be a serious matter and one for which it places full blame on the accused. There is all the more occasion for this since – even at the appeal hearing – he was not willing to accept responsibility for what he had caused, let alone shown any sign of understanding the reprehensible nature of his acts.”

10.  The applicant lodged an appeal in cassation with the Supreme Court (Hoge Raad).

11.  Before the Supreme Court, the applicant argued, inter alia, that the Court of Appeal’s judgment should be quashed as the existing domestic case-law equating a suspect’s demand for access to a lawyer before agreeing to undergo a breathalyser test with refusal to undergo such a test (see paragraph 29 below) was no longer considered good practice. He submitted that suspects should be provided promptly with information concerning the right of access to a lawyer and actual access to a lawyer without undue delay. In addition, the applicant referred to case-law of the European Court of Human Rights – specifically, Loboda v. Ukraine (no. 8865/06, 17 November 2016), and Ibrahim and Others v. the United Kingdom ([GC], no. 50541/08 and 3 others, § 255, ECHR 2016) – emphasising that the right of everyone charged with a criminal offence to be effectively defended by a lawyer was one of the fundamental features of the notion of a fair trial. In his submission, lawyers were easily reachable by mobile telephone, so that his wish to speak to a lawyer before undergoing a breathalyser test had been reasonable and ought not to have been construed as a refusal to undergo such a test.

12.  The Procurator General did not submit an advisory opinion in writing.

13.  On 28 March 2017, the Supreme Court declared the appeal inadmissible on summary reasoning, applying section 80a of the Judiciary (Organisation) Act (Wet op de rechterlijke organisatie; see paragraph 21 below).

B.  Relevant domestic law and practice

1.  Code of Criminal Procedure

14.  Article 432 of the Code of Criminal Procedure (“the CCP”) provides that, except in certain circumstances not relevant to the present case, an appeal in cassation must be introduced within fourteen days of the delivery date of the final judgment.

15.  Once the registry of the Supreme Court has received the case file, the Procurator General must notify the defence accordingly (Article 435 § 1).

16.  Once the defence has been notified in accordance with Article 435 § 1, the President of the Supreme Court sets a hearing date (rechtsdag) for the public submission of the Procurator General’s advisory opinion. The defence must be notified of that date (Article 436 §§ 1-2).

17.  If the appeal in cassation has been lodged by the defence, the accused’s counsel must submit a written statement of grounds of appeal within two months, failing which the appeal will be declared inadmissible (Article 437 § 2).

18.  On the date set for that purpose (Article 436 § 1 and paragraph 16 above), the Procurator General submits his advisory opinion in writing to the Supreme Court.

19.  All cases must be heard (in behandeling genomen) at a public hearing for criminal cases before a single-judge chamber of the Supreme Court (the administrative session judge; Article 438 § 1). The administrative session judge will refer a case to a multi-judge chamber (meervoudige kamer) if, inter alia, counsel for the defence wishes to explain the grounds of appeal orally rather than merely by means of a written submission.

20.  The Procurator General will submit an advisory opinion in writing (Article 439 § 1) unless no statement of grounds of appeal has been submitted on behalf of the accused (Article 439 § 2). A copy of the advisory opinion must be sent to the defence (Article 439 § 3). Counsel for the defence has two weeks to submit written comments – the “Borgers letter” (so called following the Court’s judgment in the case of Borgers v. Belgium, 30 October 1991, Series A no. 214‑B) – in response (Article 439 § 5).

2.  The Judiciary (Organisation) Act

(a)  Section 80a

21.  Section 80a of the Judiciary (Organisation) Act entered into force on 1 July 2012. It provides as follows (references to other domestic legislation omitted):

“1.  The Supreme Court may, after having taken cognisance of the advisory opinion of the Procurator General (gehoord de procureur-generaal), declare an appeal in cassation inadmissible if the complaints raised do not justify an examination in cassation proceedings (de aangevoerde klachten geen behandeling in cassatie rechtvaardigen), because the appellant party obviously has insufficient interest in the cassation appeal (klaarblijkelijk onvoldoende belang heeft bij het cassatieberoep) or because the complaints obviously cannot succeed (klaarblijkelijk niet tot cassatie kunnen leiden).

2.  The Supreme Court shall not take a decision as referred to in the first paragraph without first having taken cognisance of:[in civil cases:] the summons or request [introducing the cassation appeal] ... and the memorandum in reply (conclusie van antwoord) or the statement of defence (verweerschrift), if submitted;[in criminal cases:] the written statement of the grounds of the cassation appeal (de schriftuur, houdende de middelen van cassatie) ...; or, as the case may be,[in tax cases:] the written statement introducing the cassation appeal (het beroepschrift waarbij beroep in cassatie wordt ingesteld) ... and the statement of defence, if submitted.

3.  The cassation appeal shall be considered and decided by three members of a multi-judge Chamber (meervoudige kamer), one of whom shall act as president.

4.  If the Supreme Court applies the first paragraph, it may, in stating the grounds for its decision, limit itself to that finding.”

(b)  Relevant case-law and practice

i.  Case-law of the Supreme Court

22.  In a series of judgments of 11 September 2012 (ECLI:NL:HR:2012:BX0146; ECLI:NL:HR:2012:BX0129; ECLI:NL:HR:2012:BX7004; ECLI:NL:HR:2012:BX0132 and ECLI:NL:HR:2012:BY912) the Supreme Court clarified its understanding of section 80a of the Judiciary (Organisation) Act as applicable in criminal cases. The following is an excerpt from ECLI:NL:HR:2012:BX7004:

“2.1.2.  The explanatory memorandum (memorie van toelichting) to the Bill that led to this Act (Parliamentary Documents, Lower House of Parliament (Kamerstukken II) 2010/11, 32 576, no. 3) includes the following:

‘1. Introduction

Aim pursued by the Bill

This Bill aims to strengthen the role of the cassation procedure (versterking van de cassatierechtspraak) by establishing different and new requirements for lawyers who act as representatives before the Supreme Court and by introducing the possibility for the Supreme Court to declare inadmissible a cassation appeal at the beginning of the procedure. The Bill is intended to enable the Supreme Court to concentrate on its core tasks as a court of cassation. The adequate execution of these core tasks is under pressure as a result of cassation appeals being lodged in cases that do not lend themselves to a review in cassation, and because certain issues about which it would be desirable for the Supreme Court itself to pronounce do not reach the Supreme Court in time or at all. The establishment of quality requirements for counsel is aimed at ensuring that cassation appeals are accompanied by statements of grounds of appeal that are of decent quality.

...

Accelerated inadmissibility

Another measure [in addition to establishing new quality requirements for legal representatives] is the introduction of a mechanism for disposing of cases that goes beyond that of the current section 81 of the Judiciary (Organisation) Act. Section 81 of the Judiciary (Organisation) Act enables the Supreme Court to limit the reasoning of the rejection of a cassation grievance to the finding that the complaint raised therein ‘does not constitute grounds for overturning the impugned judgment and does not give rise to the need to determine legal issues in the interests of legal uniformity and legal development’.

Section 81 of the Judiciary (Organisation) Act has in recent years played an important part in keeping the workload of the Supreme Court manageable. The Supreme Court now applies this provision in approximately half of its cases. However, the limits of its application are discernible. Moreover, section 81 is applied only at the end of cassation proceedings and, (invariably, in civil and criminal cases) after an advisory opinion from the Procurator General. However, the possibility of rejecting cases that have no prospect of success at an earlier stage of the proceedings and in a simple manner would constitute a considerable alleviation for the parties to the proceedings and the Supreme Court alike. ...

Pursuant to Article 118 § 2 of the Constitution (Grondwet), the Supreme Court is charged, in the cases and within the limits prescribed by law, with overturning judicial decisions that are contrary to the law (de cassatie van uitspraken wegens schending van het recht). The Bill explicitly does not seek to change the Supreme Court’s task. Nor does [the Bill] involve a leave-to-appeal system in which a court has to give prior permission before a legal remedy can be used. The freedom of parties to lodge cassation appeals remains unimpaired. What is new is the latitude given to the Supreme Court to declare an appeal inadmissible on the (substantive) finding that the grounds of appeal submitted do not justify a detailed review in cassation proceedings (geen nadere beoordeling in cassatie rechtvaardigen). The appeal may, for instance, be manifestly ill-founded (klaarblijkelijke ongegrondheid), because the impugned ruling rests on two grounds, each of which is capable of supporting the decision by itself but only one of which is challenged, or there may be a lack of interest, for example because a ground for the appeal, although well-founded, cannot, after the overturning of the impugned ruling, lead to an outcome other than the one to which that ruling had led.

...

2.2.2. Section 80a of the Judiciary (Organisation) Act does, however, bring about a change in cases in which an omission hitherto necessitated the overturning of the impugned ruling, even though the person bringing the cassation appeal did not actually have a sufficient interest − deserving to be respected in law (niet voldoende in rechte te respecteren belang) − in such an overturning and a possible rehearing after remittal or referral of the case. In this context, it is to be noted that the mere possibility – regardless of the reason for which the appeal is considered well-founded – that in that situation a different, and possibly more advantageous, ruling could be given (for example, a reduction of sentence pursuant to the length of the proceedings before and after remittal or referral of the case, or in relation to changed personal circumstances) cannot be considered an interest that deserves to be upheld in law in cassation proceedings.

...

2.2.4.  In this connection it is worth paying attention to the example mentioned on page 19 of the explanatory memorandum, that an appeal in cassation can henceforth be disposed of under section 80a of the Judiciary (Organisation) Act if it purports to complain only that as a result of the introduction of the appeal in cassation, the reasonable time requirement within the meaning of Article 6 § 1 of the Convention has been violated. In such a case, in which the person concerned appears not to have any complaints (on points of law) about the judgment appealed against, nor about the way the lower court has handled the case, and the accused has to a certain extent himself chosen to live under the threat of (further) prosecution for longer than is reasonable, reliance on the reasonable time requirement laid down in the aforementioned Convention provision is not a complaint that expresses a sufficient interest in the appeal in cassation. After all, it cannot be said that there has been an omission that has had a bearing on the impugned judgment. It does not make any difference if, in addition to the point of appeal concerning the reasonable time requirement, no other grounds of appeal are submitted than those that do not stand in the way of the application of section 80a of the Judiciary (Organisation) Act.”

23.  The judgment goes on to identify other specific types of cases in which section 80a of the Judiciary (Organisation) Act may be applied. It continues:

“Consequences for the content of the statement of grounds of appeal in cassation and the ‘Borgers letter’

2.6.1.  Pursuant to the second paragraph of section 80a of the Judiciary (Organisation) Act, the Supreme Court shall not take a decision as referred to in the first paragraph without first having taken cognisance of the written statement of grounds of appeal in cassation ... If the ‘selection at the gate’ (selectie aan de poort) which the legislature has introduced by way of section 80a of the Judiciary (Organisation) Act is to meet its intended aims, then the advocate acting as procedural representative, or the public prosecution service as the case may be, can reasonably be expected – in the words of the explanatory memorandum – to submit ‘statements of grounds of appeal ... that are of decent quality’.

2.6.2.  The first paragraph of section 80a of the Judiciary (Organisation) Act provides that the appeal in cassation can be declared inadmissible on the grounds that the appellant party obviously has insufficient interest in it. That being so, it is reasonable to expect from counsel and the public prosecution service, in cases in which [the] interest is not obvious, that the statement of grounds of appeal elaborates on the interest in the appeal in cassation lodged and therefore also on the interest deserving to be upheld and requiring the quashing of the impugned judgment and the rehearing of the case by the lower court. That too follows from the need, stressed in the explanatory memorandum, for an improvement of the quality of statements of grounds of appeal in cassation.

2.6.3.  Section 80a of the Judiciary (Organisation) Act provides that in the cases referred to therein, the Supreme Court may declare the cassation appeal inadmissible after having taken cognisance of the advisory opinion of the Procurator General. It must be presumed that the Procurator General will express his point of view as to the applicability of section 80a of the Judiciary (Organisation) Act on a hearing day set by the administrative session judge (rolraadsheer). It must also be presumed that if the Procurator General is of the opinion that the case lends itself to the application of section 80a of the Judiciary (Organisation) Act, he will express this point of view in writing. In such event, counsel for the person by whom or on whose behalf the appeal has been lodged has two weeks to respond in writing to that point of view.”

ii.  Practice of the Procurator General; the Supreme Court’s judgment of 3 February 2015

24.  It was formerly the practice of the Procurator General to provide a brief statement confirming that it was appropriate to apply section 80a to the case and proffer reasons for that view. However, in an advisory opinion of 16 December 2014 (ECLI:NL:PHR:2014:2304), the Procurator General informed the Supreme Court and the public that he would henceforth adopt the following understanding of the expression “having taken cognisance of the advisory opinion of the Procurator General” contained in section 80a § 1 (see paragraph 21 above):

“5.  Section 80a of the Judiciary (Organisation) Act provides that the Supreme Court can declare the appeal in cassation inadmissible ‘having taken cognisance of the advisory opinion of the Procurator General’. The explanatory memorandum (memorie van toelichting) to the Bill that led to this Act (Parliamentary Documents, Lower House of Parliament (Kamerstukken II) 2010/11, 32 576, no. 3), states as follows:

‘It is important that the Procurator General is provided with the opportunity to give his statement on the case or the applicability of section 80a of the Judiciary (Organisation) Act. This is the purport of the phrase “having taken cognisance of the advisory opinion of the Procurator General”. Note that this phrase also entails that the Procurator General can decide not to take a position; there is no obligation to do so.’

6.  In addition, in response to a question from the Christian Democratic Alliance group in parliament regarding the way in which the Public Prosecution Service’s right to be heard (!) (het hoorrecht van het openbaar ministerie (!)) would be treated when section 80a of the Judiciary (Organisation) Act was applied, the memorandum in reply (memorie van antwoord) to the Upper House [Parliamentary Documents, Upper House of Parliament (Kamerstukken) 2010/11, 32 576 C], explained this right to be heard in the following terms:

‘The right to be heard means that the Procurator General will be given the opportunity to be heard. This entails bringing his point of view to the attention of the Supreme Court in writing. This right to be heard means that the Supreme Court cannot decide not to involve the Procurator General in the appeal.

This does not alter the fact that when the Procurator General decides not to use his right to be heard and the Supreme Court feels that an advisory opinion is needed from the Procurator General, the Supreme Court can ask him to submit such an advisory opinion. It is expected that the Procurator General will always honour such requests.’”

25.  As apparent from the above quote, the Procurator General concluded that there was no obligation under section 80a of the Judiciary (Organisation) Act to advise on the applicability of that section. Prior to the advisory opinion of 16 December 2014, it had been the Procurator General’s practice to advise in every single case. However, as the criteria for applying section 80a were well enough known, the Office (parket) of the Procurator General concluded that this was no longer necessary. For that reason, he had decided to discontinue the practice of taking a position on the application of section 80a of the Act at issue. The Procurator General stated:

“14.  I wish to emphasise that not taking a position in writing does not imply a disguised advisory opinion in a case. Therefore, in my opinion, if no position is taken [on the applicability of section 80a of the Judiciary (Organisation) Act] the so-called ‘Borgers letter’, in which counsel can react to the Procurator General’s advisory opinion, will no longer be a possibility. There will after all be no position to react to. ...”

26.  In its judgment of 3 February 2015 (ECLI:NL:HR:2015:96) the Supreme Court responded as follows:

“2.1.  The Supreme Court has taken cognisance of the view stated in the advisory opinion of the Procurator General concerning the change proposed by the Office of the Procurator General in the practice of taking a position – in writing – in relation to the application of section 80a of the Judiciary (Organisation) Act. The gist of this change is that although offered the opportunity to do so, the Office of the Procurator General will in due course refrain from expressing a view on the application of section 80a of the Judiciary (Organisation) Act.

2.2.  Neither the wording nor the purport of section 80a of the Judiciary (Organisation) Act prevents the Office of the Procurator General from refraining from expressing a view on the application of that provision. The prescription in Article 439 § 1 of the Code of Criminal Procedure that the Procurator General must submit an advisory opinion in writing does not preclude this either, because that provision is aimed at other cases than those referred to in section 80a of the Judiciary (Organisation) Act.

2.3.1.  In its judgments of 11 September 2012 the Supreme Court held (in paragraph 2.6.3) that, where the Procurator General makes his position known on a hearing date set by the administrative session judge (rolraadsheer) and confirms in writing that it is appropriate to apply section 80a of the Judiciary (Organisation) Act, counsel for the person by whom, or on whose behalf, the appeal in cassation has been lodged has two weeks to react to that position in writing.

2.3.2.  If the Procurator General refrains from taking a position on the application of section 80a of the Judiciary (Organisation) Act or takes the position orally, on the hearing date set for that purpose, that it is appropriate to apply section 80a of the Judiciary (Organisation) Act – and accordingly does not submit an advisory opinion in writing, a copy of which is to be sent to counsel pursuant to Article 439 § 3 of the Code of Criminal Procedure – then there is no occasion to react in writing to the advisory opinion as referred to in Article 439 § 5 of the Code of Criminal Procedure. Should the Supreme Court be of the view that the case is not one in which it is appropriate to apply section 80a of the Judiciary (Organisation) Act, then the Procurator General will submit an advisory opinion in writing on a hearing date set for that purpose, and counsel for the accused, or for the injured party as the case may be, will be in a position to submit a written response to the Supreme Court.”

In its judgment of 7 June 2016 (ECLI:NL:HR:2016:1005), the Supreme Court reiterated this interpretation of section 80a of the Judiciary (Organisation) Act and Article 439 of the CCP (point 2.2 (a) of that judgment).

3.  The obligation to take a breathalyser test

(a)  The Road Traffic Act 1994

27.  Section 8(2) of the Road Traffic Act 1994 (Wegenverkeerswet 1994) makes it a crime to operate a vehicle after consuming alcohol such that a test reveals the proportion of alcohol in the breath to be in excess of 220 micrograms per litre of exhaled air or the proportion of alcohol in the blood to be in excess of 0.5 milligrams of alcohol per millilitre of blood. Section 8(3) provides that if the vehicle in issue is a motor vehicle for which a driver’s licence is required and the driver has held such a licence for less than five years, or less than seven years if the licence was issued to the driver before he or she reached the age of eighteen, then the maximum permissible proportion of alcohol in the breath is 88 micrograms per litre of exhaled air or 0.2 micrograms per millilitre of blood.

28.  Section 163(1) of the Act provides that if an operator of a vehicle is suspected of having contravened section 8 of that Act, a civil servant vested with investigative powers (opsporingsambtenaar) may order such operator to undergo a breathalyser test. Section 163(2) provides that the vehicle operator is obliged to blow into a device intended for that purpose and obey all instructions given for the purpose of the test. Section 163(5) provides that if the vehicle operator does not consent to the test, he or she may be ordered to undergo a blood test. Section 175(3) provides that if the vehicle operator refuses to undergo a breathalyser test, he may incur a more severe penalty.

(b)  Relevant case-law

29.  In a judgment of 9 September 1986, ECLI:NL:HR:1986:AC1011, the Supreme Court dismissed on summary reasoning an appeal in cassation lodged by a defendant. Even though a doctor had identified no medical reason for him to refuse to undergo a blood alcohol test, he had persisted in his refusal to do so unless he was first permitted to consult his cardiologist. The advisory opinion of the Procurator General included the following (domestic-law references omitted):

“Until now the Supreme Court has equated conditional permission for a blood alcohol test provided for [in the Road Traffic Act] with a formal refusal. Anyone who states his willingness to cooperate but only after having consulted his lawyer will be considered to have refused ... The same applies to someone who permits the blood alcohol test, but only if it is taken from a part of the body chosen by himself ... And: if a person refuses, he is held to his word. He is not given another chance to undergo a blood alcohol test ...

It is important to maintain this line of case-law, because a lack of clarity about the suspect’s refusal – which is a constitutive element of the indictable offence [of refusing to undergo the blood alcohol test] – opens the door to misunderstanding, including concerning the investigative authority (strafvorderlijke bevoegdheid) of the civil servant vested with investigative powers and the quality of the collection of evidence, which is directly linked thereto.”

30.  In a judgment of 27 November 2012, ECLI:NL:HR:2012:BY1220, the Supreme Court held as follows:

“2.4.  If an arrested suspect has not, or not within reasonable limits, been offered an opportunity by the police to consult a lawyer before the first police interview, then that will in principle constitute a procedural violation (vormverzuim) within the meaning of Article 359a of the Code of Criminal Procedure. After a defence to that effect has been proffered, this should as a rule – except in the event that the suspect expressly or implicitly, but in any case unambiguously, has waived that right, or if cogent reasons exist to limit that right – lead to the exclusion as evidence of the suspect’s statements made before he or she could consult a lawyer (compare the Supreme Court’s judgment of 30 June 2009, [ECLI:NL:HR:2009:BH3079], NJ 2009/349).

2.5.  The ground of appeal is based on the view that the above applies also where a suspect is ordered to undergo a blood test as referred to in section 163(5) of the 1994 Road Traffic Act. That view is however incorrect because such an order cannot be equated with an interview.”

COMPLAINTS

31.  The applicant complained under Article 6 of the Convention of having been denied the opportunity to confer with a lawyer before deciding whether to comply with the order to undergo a breathalyser test.

32.  In addition, the applicant complained under Article 6 of the Convention that his right to a fair trial had been violated, stating that the Procurator General had submitted an advisory opinion to which he had been unable to respond.

33.  Lastly, the applicant complained under Articles 6 and 13 of the Convention that the Supreme Court had failed to provide sufficient reasons for the dismissal of his appeal in cassation. In addition, there had been no written advisory opinion of the Procurator General, so that the applicant could not find any reasons there.

THE LAW

A.  Complaints under Article 6 of the Convention

34.  The applicant relied on Article 6 of the Convention, which in its relevant parts reads as follows:

“1.  In the determination of ... any criminal charge against him, everyone is entitled to a fair ...hearing ... by [a] ... tribunal ...

...

3.  Everyone charged with a criminal offence has the following minimum rights:

...

(c)  to defend himself in person or through legal assistance of his own choosing ...;

...”

1.  Refusal to allow the applicant to consult a lawyer before undergoing a breathalyser test

35.  The applicant complained under Article 6 of the Convention of having been denied the opportunity to confer with a lawyer before deciding whether or not he would comply with the order to undergo a breathalyser test. In this day and age, when lawyers were easily reachable and available at short notice, he should have been provided with a lawyer; if for whatever reason that had not been possible, he should at the very least have been so informed, instead of which it had been immediately assumed that he had committed a crime.

36.  The Court understands this complaint to be based on the rule, first expressed in Salduz v. Turkey ([GC], no. 36391/02, § 55, ECHR 2008), that “access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right”. Before the Supreme Court the applicant relied on judgments of this Court which followed that precedent (see paragraph 11 above).

37.  The right of everyone “charged with a criminal offence” to be effectively defended by a lawyer, guaranteed by Article 6 § 3 (c), is one of the fundamental features of a fair trial (see, among other authorities, Salduz, cited above, § 51; Nechiporuk and Yonkalo v. Ukraine, no. 42310/04, § 262, 21 April 2011; and Ibrahim and Others v. the United Kingdom [GC], no. 50541/08 and 3 others, § 255, 13 September 2016). Prompt access to a lawyer constitutes an important counterweight to the vulnerability of suspects in police custody, provides a fundamental safeguard against coercion and ill‑treatment of suspects by the police, and contributes to the prevention of miscarriages of justice and the fulfilment of the aims of Article 6, notably equality of arms between the investigating or prosecuting authorities and the accused (Salduz, cited above, §§ 53-54; see also, among other authorities, Pishchalnikov v. Russia, no. 7025/04, §§ 68-69, 24 September 2009, and Ibrahim and Others, cited above,§ 255). It is in this context that the Court has held, consistently since Salduz, that “[t]he rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction” (see Salduz, cited above, § 55; see also, among other examples, Shabelnik v.Ukraine, no. 16404/03, § 53, 19 February 2009; Pishchalnikov, cited above, § 70; Aleksandr Zaichenko v. Russia, no. 39660/02, § 37, 18 February 2010; Kaçiu and Kotorri v. Albania, nos. 33192/07 and 33194/07, § 114, 25 June 2013; A.T. v. Luxembourg, no. 30460/13, § 63, 9 April 2015; Ibrahim and Others, cited above, § 256; Simeonovi v. Bulgaria [GC], no. 21980/04, § 116, 12 May 2016; and Beuze v. Belgium [GC], no. 71409/10, § 137, 9 November 2018).

38.  Equally consistently, however, the Court has held that the privilege against self-incrimination is primarily concerned with respecting the will of an accused person to remain silent. As commonly understood in the legal systems of the Contracting Parties to the Convention and elsewhere, that privilege does not extend to the use in criminal proceedings of material which may be obtained from the accused through the use of compulsory powers but which has an existence independent of the will of the suspect, such as, inter alia, documents acquired pursuant to a warrant, breath, blood, urine, hair or voice samples, and bodily tissue for the purpose of DNA testing (see, among other authorities, Saunders v. the United Kingdom, 17 December 1996, § 69, Reports of Judgments and Decisions 1996-VI; Choudhary v. the United Kingdom (dec.), no. 40084/98, 4 May 1999; and Jalloh v. Germany [GC], no. 54810/00, § 102, ECHR 2006-IX; see also more recently and, mutatis mutandis, H. and J. v. the Netherlands (dec.), nos. 978/09 and 992/09, § 69, ECHR 2014; Van Weerelt v. the Netherlands (dec.), no. 784/14, § 55, 16 June 2015; and Caruana v. Malta (dec.), no. 41079/16, § 36, 15 May 2018).

39.  The Court has already acknowledged that submitting a person involved in a car accident to blood or breath tests is not contrary to the presumption of innocence (see Sršen v. Croatia (dec.), § 44, 22 January 2019; Tirado Ortiz and Lozano Martin v. Spain (dec.), 15 June 1999; and X. v. the Netherlands, no. 8239/78, Commission decision of 4 December 1978, Decisions and Reports (DR) 16, p. 184). It has further concluded that the absence of legal representation while such tests were performed did not affect the persons’ right to legal assistance under Article 6 § 3 (c) of the Convention (see Sršen, cited above, § 45).

40.  Turning to the present case, the Court notes that when the applicant was arrested by the police and ordered to undergo a breathalyser test, he refused to obey and stated that he wanted to talk to a lawyer first (see paragraph 5 above). The purpose of the measure was not to question the applicant about the alleged offence, but to secure evidence for the suspected offence of driving under the influence of alcohol, and no further investigative measures, in particular the taking of any statements from the applicant, were envisaged at that moment. Therefore, even though the applicant was “charged with a criminal offence” within the meaning of Article 6 § 1 of the Convention, the right to legal assistance, as guaranteed by Article 6 § 3 (c) of the Convention, did not require that he benefitted from assistance by a lawyer before having to undergo a breathalyser test.

41.  It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

2.  Alleged inability to respond to the Procurator General’s advisory opinion

42.  In the applicant’s contention, the Procurator General submitted an advisory opinion orally, preventing him from responding in writing.

43.  The question may be asked whether the applicant’s counsel was in truth denied the possibility to satisfy himself that no submissions going to the merits of the case had been made orally by the Procurator General. The Court notes that, in accordance with the relevant provisions of the CCP, the applicant’s counsel would have been given advance notice of the date of the public hearing of the Supreme Court (Article 436 §§ 1 and 2 of the CCP, see paragraph 16 above). At that hearing, which would have been public (Article 438 § 1 of the CCP, see paragraph 19 above), counsel would presumably have witnessed the Procurator General submitting his advisory opinion to the Supreme Court in writing, a copy of which would have been sent to the defence, providing an opportunity to submit written comments (Article 439 of the CCP, see paragraph 20 above). Alternatively, he would have learned that the Procurator General had identified the case as one to which it was appropriate to apply section 80a of the Judiciary (Organisation) Act (see paragraph 21 above), or else had decided to refrain from submitting an advisory opinion altogether (in accordance with the new practice announced by the Procurator General on 16 December 2014, see paragraph 24 above, and sanctioned by the Supreme Court in its judgment of 3 February 2015, see paragraph 26 above).

44.  There is nothing to suggest that the procedure laid down was not followed, nor does the applicant so allege. The presumption is therefore that at the public hearing in the present case, the Procurator General either confined himself to identifying the case as one to which it was appropriate to apply section 80a of the Judiciary (Organisation) Act or simply refrained from submitting an advisory opinion.

45.  Based on those circumstances, it is the applicant’s position that when the Procurator General refrains from submitting an advisory opinion in writing, that in itself amounts to an advisory opinion to the effect that the appeal in cassation should be declared inadmissible, to which a defendant should be able to respond in writing. He relies on Borgers v. Belgium (30 October 1991, § 27, Series A no. 214‑B) and Van Anraat v. the Netherlands ((dec.), no. 65389/09, § 67, 6 July 2010).

46.  Ever since the Court’s judgment in the case of Borgers (cited above, §§ 24-29; see also Vermeulen v. Belgium, 20 February 1996, §§ 29-34, Reports 1996-I; K.D.B. v. the Netherlands, 27 March 1998, §§ 43-44, Reports 1998-II; and Reinhardt and Slimane-Kaid v. France, 31 March 1998, §§ 104-07, Reports 1998-II), the Court has held it to be a requirement inherent in the element of “adversarial proceedings” contained in Article 6 § 1 of the Convention, as applicable to proceedings of a cassation type, that a defendant in a criminal case should have an opportunity to respond to the advisory opinion of the Procurator General. The Court has held that this requirement does not imply that a defendant should be allowed to submit fresh arguments that have no bearing on any point contained in the advisory opinion itself (see Van Anraat, cited above, § 68). The Court notes that in the case at hand, it is the applicant’s contention that Article 6 § 1 of the Convention militated against the Supreme Court’s finding that there was no occasion for the defendant to submit written arguments in response when the Procurator General had refrained from submitting an advisory opinion in writing (see paragraph 26 above, point 2.3.2 of the Supreme Court’s judgment).

47.  The Court observes that under the terms of section 80a of the Judiciary (Organisation) Act, the Supreme Court may, after having taken cognisance of the Procurator General’s advisory opinion, declare inadmissible an appeal in cassation when it is not justified to consider the complaints raised because the appellant party manifestly has insufficient interest in the appeal in cassation or because the complaints manifestly cannot succeed (see paragraph 21 above). The Court accepts that, in line with the aim of the legislature (see paragraph 22 above), section 80a – like section 81 of the same Act, which allows the Supreme Court to dismiss an appeal in cassation for not constituting grounds for overturning the impugned judgment and not giving rise to the need for a determination of legal issues ‒ is aimed at keeping the length of proceedings reasonable and also allow courts of cassation or similar judicial bodies to concentrate efficiently on their core tasks, such as ensuring the uniform application and correct interpretation of the law (see Baydar v. the Netherlands, no. 55385/14, § 47, 24 April 2018). The Court further takes into account the Supreme Court’s explanation that neither the wording nor the purport of section 80a prevents the Office of the Procurator General from refraining from expressing a view on the application of that provision and that the prescription in Article 439 § 1 of the CCP that the Procurator General must submit an advisory opinion in writing does not preclude this either, because that provision is aimed at other cases than those referred to in section 80a (see paragraph 26 above, point 2.2 of the Supreme Court’s judgment).

48.  The Court has in the past found that the non-communication of written observations or documents during the proceedings and the applicant’s inability to comment on them did not constitute a violation of the right to a fair hearing. In its reasoning, the Court explained that, in the particular cases in question, granting the applicant such rights and opportunities would have had no effect on the outcome of the proceedings, as the legal approach adopted had not been open to discussion (see, conversely, Hudáková and Others v. Slovakia, no. 23083/05, § 28, 27 April 2010). Such might be the case if the appeal was inadmissible (as in, for example, Stepinska v. France, no. 1814/02, § 18, 15 June 2004, and P.D. v. France, no. 54730/00, §§ 32-33, 20 December 2005), but also if, analogously, the appeal was manifestly unfounded (see Salé v. France, no. 39765/04, §§ 18-19, 21 March 2006, and Verdú Verdú v. Spain, no. 43432/02, §§ 26-28,15 February 2007).

49.  The same must apply a fortiori when there is no document to communicate, as in the present case (see paragraph 12 above).

50.  The Court notes the Supreme Court’s announcement that, if it takes the view that the case is not one in which it is appropriate to apply section 80a of the Judiciary (Organisation) Act, it will require the Procurator General to submit an advisory opinion in writing, to which the defendant may respond in writing (see paragraph 26 above, point 2.3.2 of the Supreme Court’s judgment). The Court considers that this possibility constitutes a safeguard.

51.  Accordingly, this part of the application is also manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

3.  Lack of reasoning of the Supreme Court’s dismissal of the applicant’s appeal

52.  The applicant complained that the Supreme Court had failed to provide sufficient reasons for the dismissal of his appeal in cassation. He complained in addition that there had been no reasoning to be found in any written advisory opinion of the Procurator General either, since none had been submitted. He cited Taxquet v. Belgium ([GC], no. 926/05, § 90, ECHR 2010), in which the Court had held that “the accused, and indeed the public, must be able to understand the verdict that has been given.”

53.  In Taxquet the Court held that in the case of an assize court sitting with a lay jury, Article 6 required safeguards appropriate to the specific features of the system in order to avoid any risk of arbitrariness and to enable the accused to understand the reasons for his conviction (see Taxquet, cited above, § 92). In that case, the safeguards offered by the jury system obtaining in Belgium had proved insufficient, and there was no possibility of an appeal before a court of full jurisdiction that would have been capable of curing this deficiency (ibid., §§ 93-100).

54.  The present case is entirely different. The applicant enjoyed the benefit of proceedings before two courts of full jurisdiction, the Regional Court and the Court of Appeal, both of which gave fully reasoned judgments that were sufficiently clear (see paragraphs 6 and 9 respectively). The Taxquet precedent on which the applicant seeks to rely is therefore inappropriate to this complaint. Moreover, the statement of grounds of appeal in cassation submitted on the applicant’s behalf (see paragraph 11 above) does not suggest that the applicant was in any doubt about the reasoning on which his conviction was based.

55.  As to the judgment of the Supreme Court dismissing the applicant’s appeal in cassation on summary reasoning (see paragraph 13 above), the Court reiterates that although Article 6 § 1 obliges courts to give reasons for their decisions, it cannot be understood as requiring a detailed answer to every argument. The Court has previously held that it is acceptable under Article 6 § 1 of the Convention for national superior courts to dismiss a complaint by mere reference to the relevant legal provisions governing such complaints if the matter raises no fundamentally important legal issue (see John v. Germany (dec.) no. 15073/03, 13 February 2007). It has also considered that it is likewise not contrary to Article 6 for those courts to dismiss, on the basis of a specific legal provision, an appeal in cassation as having no prospect of success, without further explanation (see Wnuk v. Poland (dec.), no. 38308/05, 1 September 2009, and Gorou v. Greece (no.2) [GC], no. 12686/03, § 41, 20 March 2009). This principle was reiterated by the Court in Talmane v. Latvia (no. 47938/07, § 29, 13 October 2016, with further references). In this context, the Court must also ascertain that the national courts’ decisions were not flawed by arbitrariness or otherwise manifestly unreasonable, this being the limit of the Court’s competence in assessing whether domestic law has been correctly interpreted and applied (see Talmane, cited above, § 31). The Court has also previously held that no issue of principle arises under Article 6 § 1 of the Convention when an appeal in cassation is declared inadmissible or dismissed with summary reasoning by the Netherlands Supreme Court in the context of accelerated procedures within the meaning of section 80a or 81 of the Judiciary (Organisation) Act (see Baydar, cited above, §§ 46 and 50, and Çelik v. the Netherlands (dec.), no. 12810/13, §§ 31 and 38, 27 August 2013).

56.  Accordingly, this part of the application too is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

B.  Complaint under Article 13 of the Convention

57.  The applicant complained under Article 13 of the Convention of the Supreme Court’s failure to give reasons for its decision not to overturn his conviction. He also complained of the Procurator General’s failure to submit an advisory opinion in writing, which meant that whatever special reasons there might have been to dismiss his appeal in cassation were withheld from him. Article 13 of the Convention reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

58.  Having already considered this complaint at some length under Article 6 § 1 of the Convention, the Court finds that there is no separate issue under Article 13. The requirements of the latter Article are in any case less strict than, and are here absorbed by, Article 6 § 1 (see, among many other authorities, Stichting Mothers of Srebrenica and Others v. the Netherlands (dec.), no. 65542/12, § 177, ECHR 2013 (extracts)).

59.  It follows that this part of the application is likewise manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 19 December 2019.

Marialena TsirliJon Fridrik Kjølbro
RegistrarPresident

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