ABSTRACT
The first issue before the Court was to determine whether A 6 applied. It had to therefore determine whether a ‘criminal charge’ or a ‘civil’ right was in issue. In ascertaining whether there was a ‘criminal charge’, the Court has regard to three criteria: the legal classification of the measure in question in national law, the very nature of the measure, and the nature and degree of severity of the ‘penalty’. As regards the classification in domestic law of the immediate withdrawal of a driving licence, according to the Court of Cassation, it was not a measure imposed under the criminal law, since it was a ‘preventive measure designed to take a dangerous driver off the roads for a specific period of time’. However, classification in domestic law was not decisive, having regard to the autonomous and substantive meaning to be given to the term ‘criminal charge’. As regards the nature of the measure, s 55 of the consolidated Acts did not presuppose any investigation or finding of guilt and its application was totally independent of any criminal proceedings which may subsequently be brought. The immediate withdrawal of a driving licence appeared to be a preventive, precautionary measure; the fact that it was an emergency measure justified its being applied immediately and there was nothing to indicate that its purpose was punitive. Withdrawal of a driving licence could be distinguished from disqualification from driving, a measure ordered by the criminal courts in the context of, and after the outcome of, a criminal prosecution. With regard to the degree of severity, the effect of immediate withdrawal of a driving licence was limited in time, since it could not be withheld for more than 15 days, unless there were special circumstances. The impact of such a measure, in scope and in length, was not sufficiently substantial to allow it to be classified as a ‘criminal’ penalty. In the instant case the Court observed that the withdrawal of the applicant’s driving licence did not cause him significant prejudice, since he was able to get it back six days after he had handed it over to the police and two days after he had requested its return. Therefore A 6 was not applicable under its criminal head. Moreover, the applicant had not submitted any evidence in support of his argument that a ‘civil’ right was at issue in the present case. Neither in his memorial, nor in his oral submissions to the Court, did the applicant make any other reference to a complaint based on A 13. Under the circumstances, and since no separate issue appeared to arise under that provision, the Court could see no reason to examine it.
