THIRD SECTION

DECISION

Application no . 47448/13 Valentina MARIN against Romania

The European Court of Human Rights ( Third Section ), sitting on 2 September 2014 as a Chamber composed of:

Josep Casadevall , President, Alvina Gyulumyan , Ján Šikuta , Dragoljub Popović , Johannes Silvis , Valeriu Griţco , Iulia Antoanella Motoc , judges,

and Marialena Tsirli , Deputy Section Registrar ,

Having regard to the above application lodged on 16 July 2013 ,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Ms Valentina Marin , is a Romanian national, who was born in 1971 and lives in Giurgiu . She was represented before the Court by Mr B.O.S. Ujeniuc , a lawyer practising in Giurgiu .

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

3. On 20 March 2010 the applicant ’ s son was hit by a car while crossing the road and died.

4 . On the same date the domestic authorities identified the driver and opened a criminal investigation against her for unintentional killing. In addition, they collected evidence, including inter alia witness testimonies and photographs of the scene of the accident.

5 . On the same date the Giurgiu Medical Forensic Service produced a necropsy report which concluded that the victim ’ s lethal injuries had been caused by the car accident. It also noted that the victim had a large quantity of alcohol in his blood.

6 . On 20 July 2010 the applicant joined the criminal proceedings as a civil party and claimed pecuniary and non-pecuniary damage.

7 . On 6 September 2010 a technical expert report was produced in the case. It concluded that the applicant ’ s son had been responsible for the accident because he had crossed the road through an area that did not allow pedestrian crossing and without taking the required precautions. The car was driving within the lawfully allowed speed limit and the driver could not have prevented the accident.

8 . By a decision of 26 October 2010 the Giurgiu Prosecutor ’ s Office discontinued the criminal proceedings against the driver on the ground that not all the elements of an offence had been met. The applicant challenged the decision before the hierarchical prosecutor.

9 . By a final decision of 6 December 2010 the hierarchical prosecutor attached to Giurgiu Prosecutor ’ s Office dismissed the applicant ’ s challenge as ill-founded. The applicant appealed against the decision before the domestic courts. She argued that according to some of the witness statements there was reason to believe that the passenger in the car had also contributed to the accident. Consequently, she requested that the court allowed a new technical expert report in order to clarify the circumstances of the accident, that the witnesses be confronted with one another and that they undergo a polygraph test.

10 . On 16 March 2011 the Giurgiu District Court allowed the applicant ’ s action, quashed the prosecutor ’ s orders and ordered the reopening of the criminal investigation. In addition, it instructed the prosecutor ’ s office to re ‑ hear and confront all the witnesses in the case and to order a new technical expert report which could clarify the level of the passenger ’ s involvement in the accident. In addition, it left the applicant ’ s request for polygraph tests to the prosecutor ’ s margin of appreciation, given that those involved in the events had to consent to the test.

11 . On 20 April 2011 the Giurgiu Prosecutor ’ s Office reopened the criminal investigation and administered the additional evidence requested by the domestic court.

12 . On 20 October 2011 the technical expert report produced by the Bucharest Forensic Laboratory concluded that the driver was driving within the lawful speed limit. Both the driver and the victim could have prevented the accident if the victim had not continued crossing the road and the driver had applied the brakes. However, it was impossible to determine if and how the passenger influenced the outcome of the accident.

13 . By a decision of 24 November 2011 the Giurgiu Prosecutor ’ s Office, relying on the available evidence, indicted the driver and sent the case to trial before the Giurgiu District Court.

14 . Between 24 November 2011 and 31 October 2012 the Giurgiu District Court adjourned the proceedings several times in order to allow the parties inter alia to prepare their defense, to submit evidence as well as oral and written observations.

15 . On 8 October 2012 the National Forensic Institute in Bucharest produced a third technical expert report in respect of the case following the request of the first-instance court. Its conclusions confirmed the conclusions of the technical expert report produced on 20 October 2011.

16 . By a judgment of 31 October 2012 the Giurgiu District Court convicted the driver for unintentional killing and sentenced her to two years imprisonment, suspended. In addition, it ordered jointly the driver and the insurance company covering the car to pay the applicant EUR 400,000 for non-pecuniary damage. It held that the driver had seen the applicant ’ s son and his group of friends and she had realized that they amounted to a potential danger because they had been agitated and loud. She had honked the horn of the car, had reduced the speed of the car and had tried to move away from the group by changing lanes. But once the youngsters started running across the street, the driver had no reaction to break until after she had hit the applicant ’ s son. Consequently, she had failed to act in a way that could have been reasonably expected of her. While applying the brakes might not have changed the outcome of the accident, the driver would have been acquitted, because she would have done everything possible to avoid the accident. In respect of the driver ’ s civil liability, the court noted that the victim was more responsible for causing the accident tha n the driver was. Consequently, it dismissed the applicant ’ s claim for pecuniary damage. The driver and the insurance company appealed on points of law ( recurs ) against the judgment.

17 . By a final judgment of 23 January 2013 the Bucharest Court of Appeal allowed the appeals on points of law, quashed the judgment of the first-instance court, acquitted the driver and dismissed the applicant ’ s civil claims. It held that the driver had not broken any driving regulations at the time of the accident. In addition, it considered that in determining whether the driver could have avoided the accident and could have acted even more diligently than she had, a whole range of factors needed to be considered including the driver ’ s person al circumstances, namely her age and driving experience. The criminal liability would have been engaged even if the driver had obeyed all the rules, but had proved to be insufficiently concentrated on driving and if it could have been shown that by paying better attention she could have avoided the accident. According to the available evidence, including the expert report ordered by the first-instance court, the driver had two seconds to react to the group ’ s and the victim ’ s behavior. While the applicant ’ s son was running across the road, speaking on the phone, intoxicated and not paying attention to the incoming traffic, he had an unexplained moment of hesitation. Consequently, the driver wa s caught by surprise and had no time to react by breaking. In addition, the fact that the driver was young and an inexperienced driver who had obtained her driving license in 2009 also needed to be taken into account. In these circumstances, the driver could not be blamed for failing to apply the brakes at the time of the impact. Therefore, she could not be held responsible for the accident. The court also justified the dismissal of the civil action joined to the criminal proceedings on the lack of any guilt on the part of the car ’ s driver.

COMPLAINT

18. The applicant complained under Article 6 of the Convention about the length of the criminal proceedings opened by the authorities into the death of her son. In addition, she complained that the aforementioned set of proceedings had been unfair in so far as the last instance court had lacked impartiality, had misinterpreted the applicable legal provisions and had assessed the evidence superficially by ignoring most of the ample evidence administered in the case.

THE LAW

19. The applicant complained about the length and the unfairness of the criminal proceedings opened by the authorities into the death of her son. Sh e relied on Article 6 of the Convention which, in so far as relevant, reads as follows:

“1. In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing within a reasonable time ... by an ... impartial tribunal ...”

20. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case; the conduct of the applicant and the relevant authorities; and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).

21. The Court also reiterates that in determining issues of fairness of proceedings for the purposes of Article 6 of the Convention, the Court must consider the proceedings as a whole, including the decision of the appellate court . It is not its function to substitute its own assessment of the facts for that of the domestic courts and, as a general rule, it is for these courts to assess the evidence before them. The Court ’ s task is to ascertain whether the proceedings in their entirety, including the way in which the evidence was taken, were fair (see Al-Khawaja and Tahery v. the United Kingdom [GC] , no s . 26766/05 and 22228/06, § 118, 15 December 2011 ).

22. The Court further recalls that the existence of impartiality must be determined according to a subjective test, that is, on the basis of the personal conviction of a particular judge in a given case, and also according to an objective test, that is, ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect (see Thorgeir Thorgeirson v. Iceland , 25 June 1992, § 49, Series A no. 239).

23. The Court notes that the criminal proceedings opened into the applicant ’ s son ’ s death lasted from 20 March 2010 to 23 January 2013. However, the applicant joined the criminal proceedings as a civil party only on 20 July 2010 . Consequently, the period to be taken into consideration is two years and six months for two levels of jurisdiction.

24. The Court considers that, although the case was not complex, the time lapsed cannot be considered significant given that both the pre-trial and the trial stages of the proceedings have been completed during the said period. Moreover, given the three technical expert reports produced during the proceedings the Court does not discern from the available evidence any unaccounted periods of inactivity imputable exclusively to the authorities.

25. The Court further notes that the applicant took active part in the proceedings before the last-instance court and availed herself of her rights to influence the outcome of the proceedings. Her arguments were heard by the domestic authorities and dismissed by providing clear and sufficient, albeit succinct, reasons which do not appear arbitrary.

26 . In addition, nothing in the file under examination by the Court indicates a personal conviction on the part of the last-instance court judges examining the case that could substantiate the allegations of bias. Consequently, in spite of the applicant ’ s statement, the Court is unable to corroborate her doubts as to the last-instance court ’ s lack of impartiality.

27. The Court therefore considers that the application must be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Marialena Tsirli Josep Casadevall Deputy Registrar President