Lilian Erhan, a citizen of Moldova, born in 1974 and living in Chisinau, has found justice at the European Court of Human Rights (ECtHR), after the Rîșcani Court found him guilty of drink-driving in 2015, fined him 3,000 Moldovan lei and suspended his driving licence for two years, and the Chisinau Court of Appeal rejected the man’s appeal against the first court’s decision.

Lilian Erhan, a citizen of Moldova, born in 1974 and living in Chisinau, has found justice at the European Court of Human Rights (ECtHR), after the Rîșcani Court found him guilty of drink-driving in 2015, fined him 3,000 Moldovan lei and suspended his driving licence for two years, and the Chisinau Court of Appeal rejected the man’s appeal against the first court’s decision.

According to the Public Association “Lawyers for Human Rights”, Lilian Erhan’s case began in 2015, when he was working as a driver for a state organisation.

On September 3, 2015, at 7 am, the man was stopped in traffic by traffic police who asked him to take a breathalyzer test. According to the results of the test, which was based on breath analysis, the applicant was allegedly driving under the influence of alcohol.

The complainant did not agree with the test results and asked to be accompanied to a hospital for a blood test. However, the police officers refused to accompany him, citing an urgent call. In the police report, in the place reserved for the complainant’s signature confirming that he had been informed of the results of the breathalyzer test, the complainant wrote that he did not agree. In the place reserved for the objections of the persons tested, a police officer wrote that the complainant had no objections. The file was handed over to the court.

Immediately after the incident, the plaintiff went to a hospital, where he underwent a blood test at 08:58. The results of the blood test confirmed that he had not consumed alcoholic beverages.

On 18 November 2015, the Riscani Court found the complainant guilty of driving under the influence of alcohol and fined him 3,000 Moldovan lei (about 150 EUR), with a two-year driving licence suspension.

During the proceedings, the complainant claimed that he did not agree with the result of the breathalyzer test. He pointed out that, according to the law, police officers are obliged to accompany a person who disagrees with the results of the breathalyzer test in the field to the hospital in order to confirm or refute those results within two hours from the time of the test.

The complainant argued that he expressly indicated in the minutes that he disagreed with the results of the field breathalyzer test. He also pointed out that he asked to be accompanied by a police officer to the nearest hospital for a blood test, but to no avail. The complainant then had no alternative but to go alone to a hospital within the two-hour time limit prescribed by law, where the blood test confirmed that he had not consumed alcoholic beverages.

In reaching its decision, the court relied solely on the results of the field test, declaring the results of the blood test inadmissible. In that regard, the court reasoned that since the applicant was not accompanied to the hospital by a police officer, the results of the blood test could not be admitted into evidence. In addition, the applicant could not prove that the police officers refused to accompany him to the hospital.

The applicant appealed against the judgment and reiterated his position. He pointed out that, according to the law, in case of disagreement with the test results, the police had an express obligation to accompany him to the hospital.

The cited source notes that on 23 December 2015, the Chisinau Court of Appeal rejected the applicant’s appeal, citing the same reasons as the first instance. In addition, the Court of Appeal found that the complainant did not make any objection in the section of the minutes reserved for objections. The court made no reference to the fact that the applicant had expressed his disagreement in writing elsewhere in the minutes.

Thus, the driver Lilian Erhan, a citizen of the Republic of Moldova, ended up at the ECtHR. Before the Court the applicant complained that the criminal proceedings against him were contrary to the provisions of Article 6 of the Convention, the right to a fair trial, as he was placed in a position where it was impossible to obtain the relevant evidence, contrary to the principle of legality and equality of arms.

The Court noted, first, that the plaintiff had written the words “I do not agree” on all the documents drawn up by the police. It noted that according to paragraph 6 (e) of Judgment No 296 this in itself would serve as sufficient reason for him to be accompanied to the hospital by a police officer. Secondly, a police representative who was present at the hearing of the case before the court did not dispute the applicant’s allegation that he had asked to be accompanied to a hospital and that the police officer concerned had refused to accompany him because he had another urgent matter to attend to.

In such circumstances, the Court found no reason to doubt that the applicant had asked to be accompanied for a biological test, but without success. The fact that the applicant did not request this in writing is, in the Court’s eyes, immaterial because the Government did not indicate any legal or practical provision requiring the written form of such a request. On this point, the Court wished to emphasise that the applicant’s conduct in rushing to the hospital to have his blood alcohol level checked speaks in favour of his credibility and genuine intention expressed in the “I do not agree” note entered in the documents in question, according to the source quoted.

Beyond that, the Court noted that national courts refused to accept as evidence the results of the biological test precisely because it was carried out in the absence of a police officer, as required by law. In these circumstances, it held that by refusing to accompany the applicant to the hospital and accept the results of the applicant’s biological test, the national authorities had made it impossible for him to defend himself against the charge of drink-driving. This undermined the requirements of a fair trial and equality of arms, contrary to the requirements of Article 6 §§ 1 and 3 (b) of the Convention.

There was a corresponding violation of these provisions. The Court awarded the applicant the sum of EUR 3 600 in respect of non-material damage and EUR 800 in respect of costs and expenses.