FOURTH SECTION

DECISION

Application no. 41220/09 Ion DÃŽCÄ‚ against Romania

The European Court of Human Rights (Fourth Section), sitting on 12 November 2019 as a Committee composed of:

Faris Vehabović, President, Iulia Antoanella Motoc, Carlo Ranzoni, judges, and Andrea Tamietti, Deputy Section Registrar ,

Having regard to the above application lodged on 24 July 2009,

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 Ion Dîcă, is a Romanian national who was born in 1967 and lives in Sighi ş oara. He was represented before the Court by Ms L.R. Boilă, a lawyer practising in Târgu-Mureș.

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

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

4 . On 6 September 2001 the applicant was the victim of a car accident. The car he was driving collided with a lorry on a road, which was wet owing to heavy rain.

5 . The medical documents and the medical expert reports ordered by officers at Sighi şoara police station and produced in respect of the case – including an expert medical report produced on 12 December 2003 by the T â rgu-Mure ş Forensic Service – noted that the applicant was suffering from head and face injuries, including a fractured frontal skull and face. He required 120 to 140 days of medical care. He would require repeated rounds of surgery (including emergency surgery), had a frontal craniotomy, and his left lachrymal sac had been partially removed by a doctor. His face had been left with a mild aesthetic defect that did not amount to disfigurement. His bodily functions had been permanently diminished by 30% because bone substance in his skull and the lachrymal sac had been removed by a doctor. He had not lost his ability to work.

6 . On the date of the accident, the Sighi ÅŸoara police conducted an on-site investigation into its circumstances. The report of that investigation described the position and the state of the two cars involved and the conditions of the road (in particular, the heavy rain) and stated that the police had taken measurements, identified the drivers involved in the accident and an eyewitness to the accident, taken photographs, produced a diagram of the accident, and noted that a breathalyser test had revealed that the lorry driver had not ingested alcohol.

7 . On 11 December 2001 the Sighi şoara police instituted criminal proceedings against the lorry driver because he had caused the applicant ’ s injuries, giving rise to the offence of involuntarily causing bodily harm.

8 . From 11 January 2002 until 16 June 2005 the Sighi ÅŸoara police repeatedly heard the applicant, the lorry driver and several witnesses, and staged confrontations between some of those witnesses in the light of the contradictory statements that they had given.

9 . Between 17 January 2002 and 7 April 2005 the Sighi şoara police – either at the parties ’ request or in response to objections lodged by them –ordered four expert technical reports on the dynamics of the accident. The experts noted that the exact point of impact between the two vehicles could not be established because of the lack of sufficient evidence and because the case file did not include information about the debris identified on the site of the accident. They also noted that the on-site investigation report did not contain information on the technical condition of the respective vehicles (in particular the degree of wear on their tyres) and on the depth of the standing water on the road. The reports reached different conclusions concerning responsibility for the accident: the first report (of 15 May 2002) concluded that both drivers had been responsible for the accident; the second report (of 30 October 2002) found that the applicant had been responsible; the third report (of 10 October 2004) excluded the applicant ’ s guilt; and the fourth report (of 7 April 2005) did not determine whether either the lorry driver or the applicant had been exclusively responsible for the accident.

10 . On 15 November 2003 the applicant lodged a request with the Sighi ÅŸoara police for additional evidence to be added to the case file, including a new medical expert report concerning his injuries. He joined the criminal proceedings as a civil party.

11 . On 14 July 2005 the Sighi ÅŸoara police proposed that the lorry driver be indicted and that the case be sent to trial.

12 . On 24 October 2005 the Sighi ş oara Prosecutor ’ s Office (“the prosecutor ’ s office”) charged the lorry driver with having involuntarily caused severe bodily harm and sent the case to trial before the Sighi ş oara District Court (“the District Court”). The prosecutor ’ s office held that the lorry driver had failed to adapt the speed of his vehicle to the driving conditions and had veered onto the applicant ’ s side of the road.

13 . On 20 February 2006 the applicant informed the District Court that he had joined the criminal proceedings as a civil party. He claimed 40,000 Romanian Lei (RON – 11,400 euros (EUR)) in respect of pecuniary damage and RON 100,000 (EUR 28,500) in respect of non ‑ pecuniary damage. Lastly, he claimed monthly payments (by whoever was found responsible for the accident) amounting to 20% of the average salary in Romania for the additional effort he had had to make after the accident when going about his daily activities.

14 . From 21 November 2005 until 15 October 2007 the District Court held fifteen hearings in respect of the case. The court adjourned the proceedings repeatedly in order to: summon the parties; allow them to prepare their case, be present at the hearings and adduce evidence; hear the applicant, the defendant and the witnesses in the case; fine one of the absent witnesses and summon other absent ones; allow the prosecutors and the registry of the court to participate in a strike; and allow the applicant ’ s request for a forensic expert report to be produced in respect of the case and the parties to become acquainted with the conclusions of that report and submit observations.

15 . On 25 June 2007 the National Service for Forensic Expert Reports issued the above-mentioned forensic expert report ordered by the District Court concerning the circumstances of the accident. It concluded that the accident had happened close to the centre of the road, but it could not determine on which side of the road the accident had occurred.

16 . On 22 October 2007 the District Court acquitted the lorry driver and dismissed the applicant ’ s claim for damages. The court took into account the available documents and testimonial evidence, including evidence concerning the debris identified at the site of the accident and the degree of wear on the lorry ’ s tyres. It held that only one of the expert technical reports had concluded that the lorry driver had been exclusively responsible for the accident, and that that conclusion was doubtful because it had been contradicted by the remaining expert reports (see paragraph 9 above). Moreover, the lorry driver had not breached any rules concerning driving on public roads. The accident had been caused by other factors, such as a driving error on the part of the victim.

17 . Both the applicant and the prosecutor ’ s office appealed against the judgment to the Târgu-Mureş County Court (“the County Court”).

18 . Between 21 March and 19 May 2008 the County Court held four hearings in respect of the case. It adjourned the proceedings repeatedly to allow the parties to prepare their cases and for deliberations. The court dismissed requests lodged by the applicant for it to hear one of the experts interrogated at first-instance and to view video images recorded after the accident. It held that the available evidence rendered the hearing of an expert unnecessary and that the images in question would have to be viewed by the court anyway during deliberations since they were part of the evidence in the case file.

19 . On 21 May 2008 the County Court dismissed the applicant ’ s appeal against the first-instance court ’ s judgement and upheld that judgment.

20 . The applicant and the prosecutor ’ s office appealed on points of law against the judgment to the Târgu-Mureş Court of Appeal (“the Court of Appeal”). The applicant claimed a total of RON 180,000 (EUR 49,400) in respect of (i) pecuniary and non-pecuniary damage and (ii) the costs and expenses incurred during the proceedings before the courts.

21 . Between 5 November 2008 and 3 March 2009 the Court of Appeal held seven hearings in the case. It adjourned the proceedings repeatedly to allow for the defendant to be summoned, for the applicant ’ s lawyer and the defendant and his lawyer to be present, for the parties to submit oral arguments, and for deliberations.

22 . By a final judgment of 10 March 2009 the Court of Appeal allowed the applicant ’ s appeal on points of law. It held that both the lorry driver and the applicant had been equally responsible for the accident because they had failed to comply with the rules concerning driving on public roads and had driven their vehicles too close to the centre of the road. The court convicted the lorry driver of involuntarily causing severe bodily harm and sentenced him to one year ’ s imprisonment, suspended. In addition, it awarded the applicant RON 5,000 (EUR 1,200) in respect of pecuniary damage on the grounds that only that part of his claim had been substantiated. It also awarded the applicant RON 2,000 (EUR 500) in respect of non-pecuniary damage on the grounds that that amount constituted sufficient compensation for the applicant ’ s physical and psychological suffering, given his shared responsibility for causing the accident. The court dismissed the remainder of the applicant ’ s claim for damages as unsubstantiated. Lastly, it held that the applicant and the lorry driver should bear their own respective costs and expenses in the light of their shared blame.

23 . On 23 March 2009 the lorry driver lodged an extraordinary application for the annulment of the final judgment of 10 March 2009 on the grounds that the appeal on points of law had wrongly been allowed and that the time-limit for prosecuting the crime had expired.

24 . Between 8 April and 18 May 2009 the Court of Appeal held five hearings in respect of the case. It adjourned the proceedings repeatedly in order to carry out a preliminary assessment of the admissibility of the extraordinary application for annulment, to examine an application lodged by two of the members of the bench for them to be allowed to withdraw from the proceedings, and for deliberations.

25 . On 19 May 2009 the Court of Appeal allowed the lorry driver ’ s extraordinary application for annulment, quashed the final judgment of 10 March 2009 in part and discontinued the prosecution against the lorry driver as time-barred. The court upheld the amount of damages awarded to the applicant.

26 . The former Romanian Civil Code, in force until 1 October 2011, provided that any person who was responsible for causing damage to another would be liable to make reparation for it regardless of whether the damage was caused through his or her own actions, through his or her failure to act or through his or her negligence (Articles 998 and 999 – see Nicolae Virgiliu Tănase v. Romania [GC] , no. 41720/13, § 68, 25 June 2019).

COMPLAINTS

27 . The applicant complained under Article 2 of the Convention that the authorities had failed to carry out an effective and speedy investigation into the circumstances of the accident capable of identifying its causes and bringing the responsible persons to justice.

28 . The applicant complained under Article 6 of the Convention of the length of the proceedings in which he had participated as civil party and the manner in which the courts had examined and interpreted the evidence. In addition, he complained that the second-instance court had refused to admit new evidence to the case file, thus breaching the principle of equality of arms. Lastly, he complained that the courts had not given reasons for the manner in which they had established the amount to be awarded in damages.

29 . The applicant complained under Article 1 of Protocol No. 1 to the Convention about the amount in damages awarded by the courts, which he found insufficient, and about the fact that he had not been awarded any sum to cover the costs incurred during the proceedings.

THE LAW

30 . The applicant complained that the investigation into the circumstances of his accident had been ineffective and lengthy. He relied on Article 2 of the Convention, which, in so far as relevant, reads as follows:

“1. Everyone ’ s right to life shall be protected by law ...

...”

(a) The Government

31 . The Government argued that Article 2 of the Convention was not applicable in respect of the instant case. Even though serious, the applicant ’ s injuries had not been caused intentionally or by a State agent, and the medical documents did not attest that they had been life-threatening. They considered that the applicant ’ s interests would be sufficiently protected if the Court decided to examine the case under Article 3 of the Convention.

32 . In any event, the investigation had been effective. The authorities had been prompt in initiating the investigation, had remained active, and had made efforts to clarify the circumstances of the accident. The length of the proceedings and the lorry driver ’ s criminal liability becoming time ‑ barred had been due to the significant number of expert reports the authorities had had to produce and to the amount of evidence they had had to consider in the case, and not to any inaction on the part of the authorities or to any fraudulent connivance between them and the suspect. The experts had not suggested that the police officers had been negligent in collecting evidence or that they had acted in bad faith. The adverse weather conditions on the day of the accident and the abundant water on the road could have changed the position of the debris, and some witnesses had expressly acknowledged having moved pieces of the applicant ’ s car even before the police ’ s arrival on site. The applicant and his counsel had been informed of all the steps taken during the investigation and had been actively involved.

33 . The Government observed that the applicant had been awarded damages in the domestic proceedings. The amounts awarded to him had reflected his shared blame for the accident.

(b) The applicant

34 . The applicant submitted that because of the errors committed by the police officers in the initial examination of the accident site the subsequent expert reports and investigation had been compromised and rendered ineffective. The investigators had failed to collect all the evidence – such as information about the debris on the road and about technical equipment fitted to the lorry that had been capable of recording the driver ’ s conduct – or to order the appropriate tests to verify the level of alcohol in the lorry driver ’ s blood and the technical state of the cars and the degree of wear on their tyres.

35 . Because the proceedings had been excessively lengthy, the statutory time-limit for criminal liability had been exceeded and the lorry driver had thereby escaped his criminal responsibility.

36 . The compensation awarded by the courts had not reflected the seriousness of the harm that he had suffered.

37 . The Court notes that the Government have submitted that Article 2 was not applicable in respect of the instant case and that the applicant ’ s complaint may be examined under Article 3 of the Convention (see paragraph 31 above). In addition, they contended that the applicant had been compensated for the damage that he had suffered following the accident (see paragraph 33 above).

38 . As regards the Government ’ s argument that Article 3 may be applied in respect of the applicant ’ s case, the Court reiterates that bodily injuries and physical and mental suffering experienced by an individual following an accident that is merely the result of chance or negligent conduct cannot be considered to constitute a consequence of “treatment” to which that individual has been “subjected” within the meaning of Article 3 (see Nicolae Virgiliu Tănase v. Romania [GC] , no. 41720/13, § 123, 25 June 2019).

39 . In the instant case, the parties have not submitted any arguments or evidence that would lead the Court to depart from the above-mentioned finding and hold that Article 3 is therefore applicable to the particular circumstances of the applicant ’ s case.

40 . As regards the Government ’ s objection concerning the applicability of Article 2 and as far as their submission regarding the level of compensation received by the applicant may be understood to amount to an argument raising doubts about the applicant ’ s victim status, the Court takes the view that it is not necessary to examine the objection and the submission in question. Even assuming that Article 2 is applicable in respect of the instant case and that the applicant can still claim to be a victim of a breach of his Convention rights, his complaint is in any event inadmissible for the following reasons.

41 . The Court reiterates the principles set out in its case-law concerning the authorities ’ procedural obligation in circumstances concerning accidental injuries suffered as a result of road traffic accidents (ibid., §§ 157-72).

42 . In this regard, the Court observes that immediately after the accident the police started an investigation, identified an eyewitness to the accident, and collected evidence (including measurements, the result of a breathalyser test and photographs – see paragraph 6 above) capable of clarifying the circumstances in which it had occurred.

43 . In addition, the authorities identified the drivers involved in the accident and took oral evidence from them and from witnesses who were familiar with the event (see paragraph 8 above). As long as his medical condition permitted, the applicant was actively involved in the proceedings. Both during the investigation and the court proceedings he had access to the case file and was able to challenge the acts and measures implemented by the authorities and to ask for additional evidence to be included in the case file (see paragraphs 14 and 18 above). The fact that some of his requests for the collection of evidence or for additional evidence to be adduced (see paragraph 18 above) were dismissed does not indicate that the authorities were unwilling to establish the circumstances of the accident and the liability of those involved. The authorities provided adequate reasons for dismissing the applicant ’ s demands and acted within the limits of the discretion allowed to them in respect of deciding what evidence was relevant to the case (ibid., § 183).

44 . Given the evidence in the case, notwithstanding the irregularities alleged by the applicant in respect of the collection of evidence (see paragraph 34 above), the Court does not find sufficient grounds to conclude that the domestic proceedings or the collection of evidence were ultimately insufficiently thorough. The authorities ’ decisions in the case were not taken hastily or arbitrarily, but rather followed years of investigative work, which resulted in the accumulation of a large body of evidence (including forensic and technical elements –see paragraphs 9 and 15 above). That evidence addressed questions raised within the framework of the criminal proceedings that related to civil claims – including matters regarding the conduct of the drivers involved and the causes of the accident.

45 . The investigative proceedings in respect of the circumstances of the accident started on 6 September 2001 (see paragraph 6 above) and ended on 19 May 2009, when the Court of Appeal allowed the lorry driver ’ s extraordinary application for annulment (see paragraph 25 above). They thus lasted seven years, eight months and thirteen days, over three levels of jurisdiction. It is true that there were some delays in the proceedings. However, given the reasons for some of these delays (see paragraphs 14, 21 and 24 above, they cannot be said to have been caused by a lack of diligence by the authorities or to have affected the effectiveness of the investigation.

46 . The Court notes in this connection that even though the investigation was not of considerable factual complexity initially, the procedural complexity of the case increased because of the repeated forensic and technical expert reports produced and the need to clarify contradictory witness statements.

47 . The Court furthermore notes that (i) the parties requested several expert and technical reports, challenging the conclusions of those technical reports (see paragraphs 9 and 14 above), and (ii) the lorry driver lodged an extraordinary application for the annulment of the final judgment delivered by the Court of Appeal (see paragraph 23 above). While the applicant cannot be held responsible for the parties taking full advantage of certain remedies available to them under domestic law, the national authorities cannot either be held accountable for the resulting increase in the length of the proceedings (see, mutatis mutandis , Sürmeli v. Germany [GC], no. 75529/01, § 131, ECHR 2006-VII, and Nicolae Virgiliu Tănase , cited above, § 211).

48 . The Court also notes that the domestic authorities did not remain inactive during the proceedings and that they constantly took steps, collected evidence and made significant efforts to clarify the circumstances of the case. Consequently, the Court considers that it cannot be said that they failed in their duty to examine the case expeditiously, especially considering the fact that the proceedings and the applicant ’ s claim for compensation were related to damage that he had sustained from a road accident. The relevant proceedings therefore did not belong to any category of proceedings that by their nature called for special diligence, such as those relating to the custody of children, to civil status and capacity, or to labour disputes (see Sürmeli , cited above, § 133, and Nicolae Virgiliu Tănase , cited above, § 213).

49 . The Court observes that Article 2 does not guarantee a right to obtain a criminal conviction against a third party (ibid., § 185). Therefore, it considers that, in the absence of any apparent lack of thoroughness in the authorities ’ examination of the circumstances surrounding the accident, their decision to discontinue the trial against the lorry driver (see paragraph 25 above) does not suffice for it to find the respondent State liable under its procedural obligation arising from Article 2 of the Convention.

50 . The Court furthermore notes that the applicant was awarded compensation for the damage caused to him by the accident. While the applicant considers the compensation received as being too low, given the damage he suffered, the Court notes that in dismissing the remaining part of his claims for compensation, the domestic courts provided reasons that do not appear arbitrary or manifestly unreasonable – namely, that he had not substantiated that part of his claim and that he shared equal responsibility for the accident (see paragraph 22 above).

51 . Having regard to the overall assessment of the criminal proceedings with civil claims, the Court concludes that it cannot be said that the legal system, as applied in respect of the present case, failed to adequately deal with the applicant ’ s case.

52 . It follows that the applicant ’ s complaint is inadmissible under Article 35 § 3 as manifestly ill-founded and must be rejected, pursuant to Article 35 § 4 of the Convention.

53 . Relying on Article 6 of the Convention and on Article 1 of Protocol No. 1 to the Convention, the applicant alleged that he was also a victim of other breaches of his Convention rights (see paragraphs 28-29 above).

54 . The Court has examined these complaints, as submitted by the applicant. However, having regard to all the material in its possession and to the parties ’ observations, and in so far as they fall within its jurisdiction, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as being manifestly ill ‑ founded, pursuant to 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 5 December 2019 .

Andrea Tamietti i Faris Vehabović Deputy Registrar President