Communicated on 26 May 2016
SECOND SECTION
Application no. 21947/16
Lilian ERHAN
against the Republic of Moldova
lodged on 11 April 2016
STATEMENT OF FACTS
The applicant, Mr Lilian Erhan, is a Moldovan national, who was born in 1974 and lives in Chisinau.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant was a driver employed by a State organisation. On 3 September 2015 at 7 a.m. he was stopped in traffic by the police and given a field sobriety test. According to the results of the test, which was based on the analysis of the exhaled air, the applicant was driving under the influence of alcohol. The applicant disagreed with the results of the test and asked to be accompanied to a hospital in order to have a blood test. However, the police officers refused to accompany him. In the minutes drawn up by the police, in the place reserved for the applicant’s signature confirming the notification to him of the results of the sobriety test, the applicant wrote in his own hand that he did not agree (nu sunt de acord). In the place reserved for the tested persons’ objections, a police officer wrote that the applicant did not have any objections. The materials of the case were transmitted to a court for decision.
Immediately after the incident the applicant went to a hospital where he underwent a blood test at 8.58 a.m. The results of the blood test confirmed that he was sober.
On 18 November 2015 the Rascani District Court found the applicant guilty of driving under the influence of alcohol and fined him 3,000 Moldovan lei (the equivalent of some 150 euros (EUR)). The court also ordered the suspension of the applicant’s driving licence for a period of two years.
During the proceedings the applicant argued that he had disagreed with the results of the field test. He stressed that according to the law, the police were obliged to accompany a suspect who disagreed with the results of the field sobriety test to the hospital in order to confirm or invalidate those results within two hours from the moment when he had been tested. The applicant contended that he had clearly disagreed with the results of the field test and that he had made a note to that effect in the minutes. He also stressed that he had asked to be accompanied by a police officer to the nearest hospital in order to take a blood test, but to no avail. He then had had no other choice but to go alone to a hospital within the two hours’ time-limit provided by the law, where a blood test revealed his sobriety.
In reaching its decision the court replied only on the results of the field test and declared inadmissible the results of the blood test relied on. In so doing, the court reasoned that since the applicant had not been accompanied to the hospital by a police officer, the results of the blood test could not be admissible as evidence. Moreover, the applicant had failed to prove that the police officers had refused to accompany him to a hospital.
The applicant appealed against the judgment and reiterated his position. He stressed that according to the law, after stating in clear terms his disagreement with the results of the test, the police had an automatic obligation to accompany him to the hospital.
On 23 December 2015 the Chisinau Court of Appeal dismissed the applicant’s appeal, relying on the same reasons as the first instance court. Moreover, the Court of Appeal noted that the applicant had not made any objections in the section of the minutes reserved for objections. The court did not make any mention of the fact that the applicant had written about his disagreement in another place in the minutes.
B. Relevant domestic law
According to section 13 of Government Decision no. 296 of 16 April 2009 a person who disagrees with the results of the field sobriety test has the right to challenge it by undergoing a blood test in the nearest hospital within two hours. According to section 14 of the same decision, his or her refusal to undergo such a test constitutes a refusal to contest the results of the field test and shall be a ground for confirming it. Finally, under Article 16 of the same decision, in order to ensure the objectivity of the blood test, the tested person must be accompanied to the hospital by a police officer and the blood test must be conducted in his or her presence.
COMPLAINTS
1. The applicant complains that the criminal proceedings against him were unfair under Article 6 of the Convention because he was placed in a position of securing an impossible proof, namely to prove his sobriety in circumstances in which that was impossible due to the refusal of the police officers to accompany him to a hospital.
2. The applicant also complained that the manner in which the proceedings took place and their outcome had had a negative impact on his private life, a right guaranteed by Article 8 of the Convention, because he lost his employment as a result of them.
QUESTIONS TO THE PARTIES
1. Was Article 6 § 1 of the Convention criminal head applicable to the proceedings in the present case? If so, did the applicant have a fair hearing in the determination of the criminal charge against him, in accordance with Article 6 § 1 of the Convention?
2. Has there been an interference with the applicant’s right to respect for his private life, within the meaning of Article 8 § 1 of the Convention? If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?
The Government are required to provide a full copy of the domestic case-file.
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