Information Note on the Court’s case-law 230

June 2019

Nicolae Virgiliu Tănase v. Romania [GC] - 41720/13

Judgment 25.6.2019 [GC]

Article 2

Article 2-1

Effective investigation

Alleged failure to conduct effective investigation into road-traffic accident in which an individual sustained unintentional life-threatening injuries: Article 2 applicable; no violation

Article 3

Degrading treatment

Inhuman treatme nt

Alleged failure to conduct effective investigation into road-traffic accident in which an individual sustained unintentional life-threatening injuries: Article 3 not applicable

Article 8

Article 8-1

Respect for private life

Alleged failure to conduct effective investigation into road-traffic accident in which an individual sustained unintentional life-threatening injuries: Article 8 not applicable

Facts – In 2004 the applicant had a bad road accident which left him with a ser ious physical disability. The accident occurred at night on a public road, and involved two other drivers. The applicant’s car was shunted by a moving vehicle into a parked vehicle. The authorities immediately initiated a criminal investigation against the applicant and the other two individuals involved. However, that investigation, and in particular the inquiries into the responsibility of one of the other two drivers, was ultimately dropped by the prosecution in 2012 on the ground that not all the consti tuent elements of an offence were present. The prosecutor’s decision was upheld by a District Court, which dismissed the applicant’s appeal as statute-barred.

In his application to the European Court, the applicant complained under Article 3 of the Convent ion that the domestic authorities had not examined the case on the merits or shed light on the circumstances of the accident, and had applied a special time-bar for the driver who had allegedly caused the accident.

On 18 May 2017 the Chamber dealing with t he case relinquished jurisdiction in favour of the Grand Chamber.

Law

(a) The applicant’s complaint concerning the conduct of the criminal investigation

The Court wished to take the opportunity presented by the present case to clarify the scope of the relevant procedural safeguards set out not only in Articles 3, 6 § 1 and 13, relied on by the applicant, but also in Articles 2 and 8 of the Convention.

(i) The applicability of Article 3 (substantive limb)

The applicant’s health problems were directly, or at the very least indirectly, related to his accident. The damage to his health had resulted either from chance events or from negligent conduct. The inves tigation launched by the authorities into the circumstances of the accident concerned an unintentional offence. However, physical injuries and physical or mental suffering sustained by a person as a result of an accident caused by chance or negligent condu ct could not be considered as the result of “treatment” to which someone had been “subjected”, within the meaning of Article 3. Such treatment is primarily, though not exclusively, characterised by an intention to injure, humiliate or debase the individual by undermining or diminishing his or her human dignity, or attempting to arouse feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance.

Conclusion : inadmissible (incompatible ratione materiae ).

(ii) Ap plicability of Article 8

First of all, the injuries sustained by the applicant resulted from his having voluntarily engaged in an activity – driving a motor vehicle on a public road – which was essentially one that took place in public. It is true that by its very nature, this activity involved a risk that serious personal harm might occur in the event of an accident. However, that risk was minimised by traffic regulations aimed at ensuring road safety for all road users. Secondly, the accident did not occu r as the result of an act of violence intended to cause harm to the applicant’s physical and psychological integrity. Nor could it be assimilated to any of the other types of situations where the Court had previously found the State’s positive obligation t o protect individuals’ physical and psychological integrity to be engaged. Against this background, there was no particular aspect of human interaction or contact which could attract the application of Article 8 of the Convention in the instant case.

Conc lusion : inadmissible (incompatible ratione materiae ).

(iii) Applicability of Article 2 (procedural limb)

In the context of accidents and alleged negligent conduct, Article 2 is applicable if the activity in question is dangerous by its very nature and put s the life of the applicant at real and imminent risk, or if the injuries the applicant has suffered were seriously life-threatening. In such situations, the procedural obligation to carry out an effective official investigation applies. The less evident t he real and imminent risk stemming from the nature of the activity, the more significant the requirement as to the level of the injuries suffered by the applicant. This is particularly so where a high-risk private activity is regulated by a detailed legisl ative and administrative framework whose adequacy and sufficiency for the reduction of the risk to the lives of the persons involved is beyond doubt or not contested.

In situations where it is not clear at the moment of the event or incident whether the vi ctim’s life is at real and imminent risk or whether the injuries sustained are seriously life-threatening, the Court considers that it would be sufficient, for Article 2 to apply, that the risk appears real and imminent or the injuries appear life-threaten ing when they occur. Once such a matter has come to the attention of the authorities, Article 2 imposes on the State ipso facto an obligation under Article 2 to carry out an effective investigation. This obligation continues to apply as long as it has not been established that the risk for life was not real and imminent or that the injuries were clearly not seriously life-threatening.

Irrespective of whether driving can be viewed as a particularly dangerous activity or not, where the risk stemming from the nature of the activity is less evident, the level of the injuries sustained by the applicant takes on greater prominence. Thus, at the time of the accident, there was an arguable claim that his injuries were sufficiently severe to amount to a serious dange r to his life.

Conclusion : Article 2 applicable.

(iv) The merits of Article 2 (procedural limb)

In cases concerning unintentional infliction of death and/or lives being put at risk unintentionally, the procedural obligation deriving from Article 2 only re quires the State legal system to afford applicants a remedy in the civil courts, but it does not require a criminal investigation to be conducted into the circumstances of the accident. At the same time, there is nothing to prevent domestic law from provid ing for such a possibility.

The civil proceedings brought by the applicant against the insurance company, in the framework of which he subsequently also accused the lease company, were irrelevant. They related to the alleged liability of these companies fo r non-fulfilment of their obligations under contracts concluded with him, and not the tort liability of the other two drivers as a result of their actions or omissions.

The applicant’s choice to join the criminal proceedings instigated by the authorities a s a civil party does not appear unreasonable. The domestic authorities had considered for a substantial period of time that there were grounds for a criminal investigation in the case. Furthermore, that remedy afforded a joint examination of criminal respo nsibility and civil liability arising from the same culpable conduct, thus facilitating the overall procedural protection of the rights at stake. The choice of the civil claim in the criminal proceedings may well have been preferable for the applicant beca use, even if he bore the burden of proving that his claim was well founded, the investigating authorities were also under an obligation to gather evidence, including evidence found at the site of the accident. The expert opinions requested by the investiga ting bodies and the other evidence collected by them in the criminal proceedings could have been used by the applicant in any civil proceedings and would probably have been essential for the determination of his civil claim.

Having regard to the domestic authorities’ repeated attempts to clarify the circumstances of the accident, the Court considers that the applicant could reasonably have expected the aforementioned criminal proceedings to address his grievances. In these circumstances, the fact that the applicant failed to lodge a separate civil action against the other two drivers cannot be held against him when assessing whether he had exhausted domestic remedies. The Government’s objection on the ground of non-exhaustion of domestic remedies was theref ore dismissed.

In addition, if deemed effective, the criminal proceedings in issue were by themselves capable of meeting the State’s obligation under Article 2 of providing an effective judicial system. In this regard, immediately after the accident the po lice instigated, of its own motion, a criminal investigation into the circumstances of the accident and collected evidence capable of clarifying the circumstances in which it had occurred.

The investigating authorities identified all the drivers involved i n the accident, including the applicant, and took oral evidence from them and from eye witnesses. As soon as his medical condition permitted, the applicant was actively involved in the proceedings. Both during the investigation and the judicial review stag es he had access to the case file, was able to challenge the independence and impartiality of the relevant authorities, as well as the acts and measures implemented by them, and to ask for additional evidence to be included in the file. He was able to appe al against the decisions of the public prosecutor’s office. The fact that some of his requests for additional evidence and some of his challenges were dismissed or that the Court of Cassation eventually allowed one of his requests for his case to be transf erred on grounds of legitimate suspicion does not indicate that the investigating authorities and the domestic courts were unwilling to establish the circumstances of the accident and the liability of those involved or that they lacked the requisite indepe ndence.

Furthermore, given the available evidence, notwithstanding the irregularities in the collection of the applicant’s blood samples, the Court did not find sufficient grounds to conclude that the investigation or collection of evidence had ultimately been insufficiently thorough. The domestic authorities’ decision to discontinue the proceedings had not been taken hastily or arbitrarily, and followed years of investigative work which had resulted in the accumulation of a large body of evidence, includin g forensic and technical elements. That evidence addressed questions raised within the framework of the criminal proceedings, including matters regarding the conduct of the drivers involved and the causes of the accident.

The authorities had dismissed some of the applicant’s requests for collection of evidence, but they had to be allowed some discretion in deciding what evidence was relevant to the investigation authorities.

The proceedings concerning the circumstances of the accident lasted over eight year s. It is true that there were some delays in the proceedings, but, given the reasons for some of these delays, they cannot be said to have reduced the effectiveness of the investigation. The Court reiterated in that connection that compliance with the proc edural requirement of Article 2 was assessed on the basis of several essential parameters, which were interrelated but, unlike the fair-trial requirements set out in Article 6, each of them taken separately did not amount to an end in itself. They were cri teria which, taken jointly, enabled the degree of effectiveness of the investigation to be assessed. It was in relation to this purpose of an effective investigation that any issues arising, including those of promptness and reasonable expediency, had to b e assessed (see Mustafa Tunç and Fecire Tunç v. Turkey [GC], 24014/05, 14 April 2015, Information Note 184 ).

Article 2 does not guarantee the right to obtain a criminal conviction against a third party. In the absence of any apparent lack of thoroughness in the authorities’ examination of the circumstances surrounding the applicant’s accident, their decision not to prosecute does not suffice to find the respondent State liable under its procedural obligation arising from Article 2.

Having regard to the overall assessment of the criminal investigation, the Court concluded that it could not be said that the legal sy stem as applied in the present case had failed to deal adequately with the applicant’s case.

Conclusion : no violation (thirteen votes to four).

(v) Assessment of Articles 13 and 6 § 1

The Court unanimously concluded that it was unnecessary to examine the complaint regarding the effectiveness of the criminal investigation under Article 13.

The Court also found, by sixteen votes to one, no violation of Article 6 § 1 because it could not be said that the applicant had been denied access to a court for a deter mination of his civil rights during the criminal proceedings.

The Court further found, by ten votes to seven, no violation of Article 6 § 1 given that there had been no breach of the “reasonable length” requirement in view of the complexity of the case and the fact that the authorities had remained active throughout the criminal proceedings.

(b) The complaint concerning the applicant’s alleged treatment by the authorities responsible for the investigation

Article 3 ( substantive limb ): In some previous case s, such as those relating to the relatives of persons who had disappeared ( Kurt v. Turkey , 24276/94 , 25 May 1998; Çakıcı v. Turkey [GC], 23657/94, 8 July 1999, Information Note 8 ; and Varnava and Others v. Turkey [GC], 16064/90 et al., 18 September 2009, Information Note 122 ), the Court had taken into a ccount the manner in which the national authorities had handled an investigation in order to examine whether their conduct had constituted inhuman or degrading treatment in breach of the substantive limb of Article 3.

In such cases, the Court takes into a ccount a variety of factors in its assessment of whether the manner in which the investigation was handled amounted in itself to treatment contrary to Article 3 for the relatives of the victims. Relevant elements include the closeness of the family tie, th e extent to which the family member witnessed the events in question, the involvement of the family member in the attempts to obtain information about the disappeared person and the way in which the authorities responded to those enquiries.

The Court also applied the principles established in the following cases:

– detention and refoulement of an unaccompanied under-age asylum-seeker ( Mubilanzila Mayeka and Kaniki Mitunga v. Belgium , 13178/03, 12 October 2006, Information Note 90 );

– allegations of sexual abuse of a child within a family ( M.P. and Others v. Bulgaria , 22457/08 , 15 November 2011);

– conditions under which the bodies of dece ased relatives had been conserved during an identification procedure ( Sabanchiyeva and Others v. Russia , 38450/05, 6 June 2013, Information Note 164 );

– death of a person in the absence of appropria te medical care in detention, followed by an inadequate internal inquiry ( Salakhov and Islyamova v. Ukraine , 28005/08, 14 March 2013, Information Note 161 ); and

– emotional suffering caused to a re lative by removal of tissue from a deceased’s body without the relative’s knowledge or consent ( Elberte v. Latvia , 61243/08, 13 January 2015, Information Note 181 ).

However, the instant case did not fall within any of the circumstances examined in the above-mentioned cases.

Conclusion : inadmissible (manifestly ill-founded).

(See also, concerning Article 3, Kraulaidis v. Lithuania , 76805/11 , 8 November 2016, and Mažukna v. Lithuania , 72092/12 , 11 April 2017 ; and, concerning Article 8, Friend and Others v. the United Kingdom (dec.), 16072/06, 24 November 2009, Information Note 123 , and Denisov v. Ukraine [GC], 76639/11, 25 September 2018, Information Note 221 )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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