THIRD SECTION

DECISION

Application no . 8050/13 Eugen CONSTANTIN against Romania

The European Court of Human Rights ( Third Section ), sitting on 7 July 2015 as a Chamber composed of:

Josep Casadevall , President, Luis López Guerra , Ján Šikuta , Kristina Pardalos , Valeriu Griţco , Iulia Antoanella Motoc , Branko Lubarda , judges, and Stephen Phillips , Section Registrar ,

Having regard to the above application lodged on 7 January 2013 ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Mr Eugen Constantin , is a Romanian national, who was born in 1959 and lives in Timi ş oara . He was represented before the Court by the National Organisation for Human Rights ( Organiza ţ ia Na ţ ional ă Pentru Drepturile Omului ), an association based in Timi ş oara .

2 . The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar , of the Ministry of Foreign Affairs .

3 . The facts of the case, as submitted by the parties, may be summarised as follows.

A. Accident of 26 February 2008

4 . On 26 February 2008 at around 6 p.m. the applicant ’ s twenty-four year old son G.C. was on his way to work. While he was on the pavement intending to cross the street at a zebra crossing, he was hooked by the lateral right side of a lorry and dragged under the wheels of its trailer. He died immediately. The lorry, driven by F.M., was carrying six workers from their place of work to their homes.

B. Criminal investigation

5 . Immediately after the accident the police arrived at the scene and started drafting the crime scene report, which included identification data of the parties involved in the accident and of two eyewitnesses, various measurements, a description of the lorry and of the area where the accident happened as well as photographs. F.M. was sent to the hospital for a blood alcohol test.

6 . The same day a criminal investigation was started against F.M. for unintentional killing. The police took written statements from four eyewitnesses. C.I. explained that she had been a few metres behind G.C., who had been on the pavement “at the zebra crossing”, when he had stumbled on a manhole cover then lost his balance and fallen under the wheels of a small lorry. She mentioned that, when the accident had happened, the traffic lights had been green for cars. S.L.V., B.I. and C.V., who were passengers in the lorry involved in the accident, stated that the lorry in question had been moving slowly on the inside lane towards green traffic lights when they had seen the victim hurrying on the pavement towards their vehicle. When S.L.V. and C.V. had looked in the right side mirror, they had seen the victim stumbling and falling under the lorry. The lorry ’ s driver had stopped immediately to see what had happened. C.V. also mentioned that the lorry had been travelling at a speed of no more than 30 kph because at that time of day the traffic was busy. At a later date, N.M. and G.D., who were also in the lorry at the time of the accident, gave similar statements.

7 . In March 2008 statements were taken from R.C. and M.R., work colleagues of the victim, as well as the victim ’ s brother, C.B, who had all seen the accident from across the street. R.C. mentioned that she had been waiting for the bus to go to work together with M.R. and other colleagues including C.B. After their bus left the traffic lights and arrived at the stop where she had been waiting, she saw that the cars in the opposite lane were all stopped at the red traffic light and that only the lorry in question was moving. Immediately afterwards, she saw C.G. lying on the road. She explained that the lorry had been moving at high speed and that she had seen C.G. standing on the kerb of the pavement in front of the zebra crossing and not crossing the street. She did not see how C.G. had fallen under the lorry ’ s wheels. M.R. and C.B. gave similar accounts of the events.

8 . On an unspecified date H.A., a witness proposed by the applicant, stated to the police that at the time of the accident he had been walking on the opposite side of the street when he had heard a noise and had turned to see what had happened. At that point he had noticed that all the cars had stopped on both sides of the road and that the traffic lights had been red for cars. The traffic lights for the zebra crossing had been green but he had not seen any pedestrian crossing at that moment.

9 . On various dates p olygraph tests were carried out on some of the witnesses. The results of blood alcohol tests came back negative for both the victim and F.M.

10 . On 3 April 2008 the applicant joined the criminal proceedings as a civil party.

11 . On 4 September 2008 an independent technical expert was chosen and specific questions were raised for his analysis in the presence of F.M. and the applicant. A record was drawn up stating that the parties had had no objections to the expert chosen or to the questions. Subsequently, the expert, accompanied by the applicant, went to the site of the accident for technical verifications. A record was drawn up of his findings, and of the applicant ’ s version of the facts, namely that C.G. had been crossing the street at a zebra crossing while the traffic lights were on green for pedestrians, when the lorry, which was moving at high speed, hooked him with its right side.

12 . On 26 September 2008 the technical expert report was submitted to the investigating authorities. After a thorough analysis of the conflicting statements given by the work colleagues of the two parties, corroborated by the statement given by C.I., and with technical data such as the sequence of the traffic lights obtained from the traffic control authorities, the report established that on 26 February 2008 at around 6 p.m. F.M. was driving a small lorry with a trailer on the inside lane of the road next to the pavement. When the lorry reached the zebra crossing in question the traffic lights were green for cars and the victim, who was running towards the street, had tried to stop before stepping onto the road but had stumbled and bumped against the right side of the lorry ’ s trailer and was dragged underneath it. The expert mentioned that the speed of the truck could not be calculated mathematically because the brake marks had not been measured after the accident. However, from the distance to which the victim was thrown – 2.60 m – and the spot where the lorry stopped after the impact, it could be analytically inferred that the speed had been low. The report concluded that the driver had not breached any traffic rules and could not have avoided the accident.

13 . On 14 November 2008 the applicant, represented by a lawyer, submitted objections to the technical expert report. He requested that the expert be required to determine precisely what the speed of the lorry had been, how the charge had been arranged in the open trailer, what had been the sequence of the traffic lights, whether the victim had been run over or hit by the lorry and whether the driver was guilty of causing the accident. On 27 November 2008 these requests were dismissed by the prosecutor in a reasoned decision since these aspects had already been clarified in the report.

14 . The investigation was concluded on 27 November 2008 with the prosecutor ’ s decision not to pursue criminal charges against F.M. for the crime of unintentional killing because no guilt could be established. The prosecutor examined the conflicting statements given by the two sets of witnesses – the victim ’ s work colleagues and F.M. ’ s work colleagues – and balanced them against the statement of the independent witness C.I. as well as the findings of the technical expert report and concluded that F.M. had not breached any traffic rules and could not have avoided the accident.

15 . The applicant challenged that decision but his complaint was rejected as ill-founded by the head prosecutor of the Prosecutor ’ s Office of the Timiş County Court on 29 December 2008.

C. The court proceedings

16 . The applicant challenged the prosecutors ’ decisions before the Timişoara District Court. He averred that, considering the severity of the crime, it was necessary to at least charge F.M. with a crime and thus allow the opportunity for more thorough technical tests to be conducted, to further examine the discrepancies between the witness statements and to enable him to take part in the proceedings as an injured party.

17 . On 22 April 2009 his complaint was allowed by the Timişoara District Court, which decided to send the case back to the prosecutor ’ s office to reopen the criminal proceedings in order to fully respond to the applicant ’ s allegations.

18 . An appeal by the prosecutor on points of law ( recurs ) against the above judgment was allowed by the Timi ş County Court on 23 November 2009. The County Court thoroughly examined the applicant ’ s complaints and the available evidence and considered that they had been fully and clearly answered by the investigation and that no additional expert reports or other investigative steps were necessary in the case. With respect to the applicant ’ s allegations that he could not take part in the proceedings, the court held that it had not been proved that the applicant ’ s procedural rights had been breached; for example, he had been able to propose witnesses.

D. The applicant ’ s request for reopening of the proceedings

19 . On 9 April 2010 the applicant authorised the National Organisation for the Defence of Human Rights to request a reopening of the case before the Prosecutor ’ s Office of the High Court of Cassation and Justice. This request was forwarded to the courts for examination.

20 . On 10 November 2010 the Timi ÅŸ oara District Court held that a reopening of the criminal proceedings in a case which had already been subject to the scrutiny of a court was only possible when new facts had been uncovered which had not been known to the investigating authorities at the relevant time. Since this was not the situation in the current case, the court declared the request inadmissible. An appeal by the applicant on points of law against that judgment was allowed on 5 January 2011 by the Timi ÅŸ County Court. The court held that a request for reopening proceedings must first be examined and resolved by way of a reasoned decision by the prosecutor and only afterwards could it be brought before the courts.

21 . The investigation was briefly re-opened following the above-mentioned court judgment. After new statements were taken from the applicant, F.M. and a new witness proposed by the applicant, on 16 November 2011 the prosecutor decided again not to pursue criminal charges in the case owing to a lack of negligence on the part of F.M. The new witness admitted that he had not in fact seen the accident but that the applicant had asked him to come and testify against F.M.

22 . The applicant ’ s complaint against that decision was rejected with final effect by the Timişoara District Court on 11 June 2012. The court examined all investigative steps taken by the prosecutors in the case and decided that the applicant ’ s complaint was ill-founded.

23 . The applicant was represented by a lawyer of h is own choosing throughout the proceedings before the domestic courts.

COMPLAINT

24 . The applicant complained under Article 6 § 1 of the Convention that the investigation into and trial concerning the road traffic accident that had caused his son ’ s death had been ineffective .

THE LAW

25 . Relying on Article 6 § 1 of the Convention the applicant complained of the alleged ineffectiveness of the investigation into his son ’ s death. The Court finds that the complaint at issue falls to be examined under Article 2 of the Convention (see Prynda v. Ukraine , no. 10904/05, § 46, 31 July 2012). This provision, in so far as relevant, reads as follows:

“1. Everyone ’ s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.”

26 . The applicant alleged that the technical expert report conducted in the case was biased in favour of F.M. and did not address critical questions of fact concerning the accident. He also submitted that the statements made by his son ’ s colleagues should have been given more weight during the investigation.

27 . The Government contended that the criminal investigation was adequate and effective in that the authorities had taken all necessary procedural steps in order to clarify the allegations submitted by the applicant. They stressed that the technical expert report commissioned during the investigation had been extremely thorough in analysing the conflicting versions of facts given by the parties and the witnesses and offering clear answers to all important questions of fact.

28 . The Court reiterates that Article 2 does not concern only deaths resulting from the use of force by agents of the State. In the first sentence of its first paragraph it lays down a positive obligation on the Contracting States to take appropriate steps to safeguard the lives of those within their jurisdiction. That obligation applies in the context of any activity in which the right to life may be at stake, including deaths resulting from road traffic accidents, and calls for an effective judicial system which can determine the cause of death and bring those responsible to account (see Anna Todorova v Bulgaria , no. 23302/03, § 72, 24 May 2011, with further references).

29 . The Court has stated on a number of occasions that, although the right to have third parties prosecuted or sentenced for a criminal offence cannot be asserted independently, an effective judicial system, as required by Article 2, may, and under certain circumstances must, include recourse to the criminal law (see, for example, Perez v. France [GC] , no. 47287/99, § 70, ECHR 2004 ‑ I).

30 . The Court also underlines that it would be inappropriate and contrary to its subsidiary role under the Convention to attempt to establish the facts of this case on its own, duplicating the efforts of the domestic authorities, which are better placed and equipped for that purpose (see, for example, Prynda, cited above , § 54 ). Following its well ‑ established practice, it will confine the examination of this application to an evaluation of the domestic investigation into the matter as regards its overall compliance with the aforementioned standards. However, a ny deficiency in an investigation undermining its ability to establish the cause of a death or those responsible for it may lead to a finding that the Convention requirements have not been met (see Pereira Henriques v. Luxembourg , no. 60255/00, § 57, 9 May 2006).

31 . Turning to the facts of the present case, the Court notes that the tragic accident which resulted in the death of the applicant ’ s son occurred on 26 February 2008. On the same date the authorities instituted criminal proceedings and took a series of measures aimed at discharging their positive obligation under Article 2 of the Convention. A number of investigative actions were carried out during the following months, including questioning of witnesses and the commissioning of a thorough technical expert report which analysed and clarified the conflicting statements in the case file (see paragraph 12 above). The prosecutor concluded without undue delay that, based on all the evidence collected, F.M. had not broken any traffic rules and hence he could not be held responsible for the accident.

32 . The applicant, represented by a lawyer, fully participated in the investigation and had the chance, inter alia , to approve the choice of the technical expert and to submit objections to his report. His objections were examined and answered in a reasoned decision by the prosecutor (see paragraph 13 above).

33 . Subsequently, the applicant ’ s complaint about the prosecutors ’ decisions was thoroughly examined by the domestic courts and was finally considered ill-founded. In this connection, the Court notes that the applicant was represented by a lawyer of his own choosing throughout the trial and that the domestic courts gave reasoned answers to all his allegations (see paragraphs 18 and 22 above).

34 . The Court notes that on 5 January 2011 the domestic courts decided to send back the case to the prosecutor ’ s office owing to a procedural shortcoming in the examination of the applicant ’ s request to reopen the proceedings. Subsequently, the prosecutor in charge decided to allow the applicant ’ s request. However, no new facts transpired from the testimony of the witness proposed by the applicant and the investigation was concluded with the same result.

35 . Whilst the applicant complained about certain aspects of the investigation, the Court observes that he availed himself of the opportunity to raise various issues and that the refusals he met with are not, as such, capable of call ing into question the effectiveness of the domestic authorities ’ investigat ion when considered as a whole. In reality, the applicant ’ s criticisms mainly concerned the assessment of the evidence gathered. Those points of disagreement between the applicant and the investigating authorities , while understandable in relation to the expectations of a civil party during a n investigation into such a sensitive case, do not suffice to show that there were shortcomings in the investigation or any impediment undermining its ability to establish the circumstances of the death of the applicant ’ s son (see Al Fayed v. France (dec.) , no. 38501/02 §§ 81-82, 27 September 2007) . In particular, the Court considers that the authorities cannot be criticised for having rejected the applicant ’ s objections in connection with the technical expert report or for the weight they decided to give to various witness statements in the context of all the evidence in their possession.

36 . Lastly the Court observes that the investigation before the prosecutor was finalised within ten months and that the three sets of proceedings instituted by the applicant before the domestic courts, including the brief reopening of the criminal investigation, lasted in total three years and two months. The Court therefore concludes that no unreasonable delays or lack of diligence on the part of the authorities in conducting the proceedings could be found in the current case (see, conversely , Antonov v. Ukraine , no. 28096/04, § 50, 3 November 2011).

37 . In view of the foregoing, and notwithstanding the undoubtedly tragic events in this case, the Court considers that no breach of Article 2 requirements can be observed in the circumstances of the case, the authorities having conducted an effective investigation for the purpose of establishing the circumstances and cause of the death of the applicant ’ s son.

38 . It follows that th e application is manifestly ill-founded and must be dismissed in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 30 July 2015 .

Stephen Phillips Josep Casadevall Registrar President