THIRD SECTION

Application no. 41818/11 Anica DIEAC against Romania lodged on 28 June 2011

STATEMENT OF FACTS

The applicant, Ms Anica Dieac , is a Romanian national, who wa s born in 1940 and lives in Bacă u .

A. The circumstances of the case

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

On 18 November 2009 the applicant ’ s husband was hit by a police car, while he was crossing the street using a pedestrian crossing. Few days later, on 26 November 2009, the victim died in hospital. The medical report drafted on the same date concluded that the death was caused by a brain contusion.

Following this incident, the Prosecutor ’ s Office attached to the Bacău District Court initiated a criminal investigation against D.M., deputy-chief police agent with the Bacău Police Office, who was driving the car involved in the accident.

Several eye witnesses, drivers involved in traffic at that time and passers by, were questioned. They gave conflicting statements to whether or not the police car ’ s visual and acoustical signals were on at the time of the accident.

In particular, two witnesses stated that the police car had its visual and acoustical signals on and one could not remember that particular aspect. Two other witnesses, including a certain V.C. who gave a video recorded statement, declared that the police car had had no visual or acoustical signals on at the moment of the accident.

The defendant declared that on the day of the accident he was assigned by his superior to investigate on scene a different accident. He also stated that he constantly drove with the visual and acoustical signals on.

Another police agent, who had been in the car with the defendant, declared that they had had the visual and acoustical signals on only when the traffic required so.

On 18 January 2010 , the Bacău Police Office informed the investigators that the defendant had been on duty on 18 November 2009.

On 28 April 2010 the Prosecutor ’ s Office attached to the Bacău District Court decided to close the investigation against the defendant for his lack of responsibility (“ scoatere de sub urmă rire penal ă ”). The prosecutor considered established that as the police car had been in an urgent mission, it had had the visual and acoustical signals on. Therefore, in failing to give it priority, the applicant ’ s husband bore the exclusive responsibility for the accident.

The applicant objected to the prosecutor ’ s decision. She complained that the investigators had not ordered a technical expertise to clarify the circumstances of the accident or had failed to reconstruct the crime scene. She also pointed out that the witness V.C. and a third person, allegedly present in the police car at that time, had not been identified and questioned by the authorities.

On 26 July 2010 , the Chief Prosecutor dismissed the applicant ’ s objections and upheld the decision of 28 April 2010. He noted that measures had been taken to identify V.C., but according to the official records no such person existed. He also dismissed the allegations concerning the presence of a third person in the police car as unsubstantiated. Lastly, it was considered that a technical expertise was not necessary, since it was the victim who had failed to give priority to a police car on a mission, and that a reconstruction of the crime scene would have been inconclusive and useless.

The applicant contested the decision of 26 July 2010 before the Bacău District Court, complaining about the conclusions of the criminal investigation and about the fact that her requests for evidences had been dismissed. In particular, she argued that under any circumstances, including when on a mission, a police agent should act cautiously, so as to avoid any incident. She asked the court to hear the witnesses in particular as they had given conflicting statements on the key points.

She further averred that the simple notice issued on 18 January 2010 by the police authorities was not sufficient to prove the existence of an urgent mission; only the Bacău Police Inspectorate ’ s special register for evidence of commandments would have proven that the defendant was indeed on a mission on the day of the accident. Lastly, she asked the court to order a technical expertise and reconstruction of the crime scene.

In a final decis ion of 23 February 2011 the Bacă u District Court dismissed the applicant ’ s complaint and upheld the conclusions of the criminal investigation.

The court re-examined the witnesses ’ testimonies from the file and concluded that the defendant was driving the police car with the visual and acoustical signals on. It also took account of a new letter issued on 16 February 2011 by the Bacau Police Inspectorate stating that the defendant had been on a mission on the day of the accident. The court shared the prosecutor ’ s view that no additional evidence was needed as it was established that the victim, even though had crossed the street using a pedestrian crossing, had nevertheless acted suddenly, without verifying the traffic.

B. Relevant domestic law

The Government Emergency Ordinance no. 195/2002 establishes the legal framework regarding circulation on public roads.

In its Article 31 § 1, the Ordinance describes the significance of the different visual signals which can be fixed on vehicles, as follows: the red light requires the drivers to stop their cars immediately as close to the side of the road as possible, the blue light obliges everybody to give them priority and the yellow light obliges everybody to go carefully. Article 31 § 2 of the same Ordinance provides the vehicles with the right to use each type of light, the police cars having the right to use both red and blue lights.

According to Article 61 of the Ordinance, the police cars have priority only when on emergency interventions or missions and only if the visual and acoustical signals are on. In such situations they may disobey the legal speed limit or other traffic rules.

Lastly, Article 72 of the Ordinance provides that a pedestrian injured as a result of the non-compliance with the circulation rules bears the entire responsibility of the accident, as long as the driver of the car involved respected all the legal provisions regarding the circulation in the area.

COMPLAINTS

1. Relying on Article 2 of the Convention, the applicant complains about the circumstances leading to her husband ’ s death and the lack of an effective investigation at the domestic level; in particular, she complains that the authorities failed to address the conflicting evidence and dismissed without justification her requests for evidence although they were aimed at better establishing the facts.

2. The applicant also invokes Article 6 § 3 (d) of the Convention in connection with the authorities failure to question some of the witnesses.

QUESTIONS TO THE PARTIES

1. Has the right to life of the applicant ’ s husband, as ensured by Article 2 of the Convention, been violated in the present case?

In particular, does the legislation regulating the circulation of police cars involved in interventions or missions meet the exigencies of predictability required under Article 2 of the Convention?

2. Having regard to the procedural protection of the right to life (see paragraph 104 of Salman v. Turkey [GC], no. 21986/93, ECHR 2000-VII), was the investigation carried out by the domestic authorities in the present case by in breach of Article 2 of the Convention?