Published on 3 July 2023

FOURTH SECTION

Application no. 15857/17 Marine MIKELADZE against Armenia lodged on 22 February 2017 communicated on 14 June 2023

SUBJECT MATTER OF THE CASE

The case concerns the death of the applicant’s daughter, T. Jgamadze, in a road traffic accident and the subsequent investigation.

On 12 September 2014 T. Jgamadze travelled from Armenia to Georgia in a taxi driven by G.M., a private person.

During this journey G.M.’s taxi had a head-on collision with a vehicle driven by F.L., also a private person.

As a result of the accident T. Jgamadze sustained serious injuries and was taken to hospital, where she died the same day.

On 13 September 2014 the Investigative Department of the Police of Armenia instituted criminal proceedings under Article 242 § 2 of the former Criminal Code (in force until 1 July 2022, “the CC”), for breach of road traffic regulations which caused the death of a person .

On an unspecified date Z.J., T. Jgamadze’s brother, was recognised as her legal heir in the criminal proceedings.

On 19 September 2014 a forensic auto-technical examination was ordered. According to the ensuing report dated 13 February 2015, G.M. and F.L. had violated road traffic regulations by driving (in opposite directions) in the middle lane of a three-lane road designated for two-way traffic, thereby causing the accident. It was noted that, in accordance with road traffic regulations, in the absence of other vehicles and obstacles in the right lane of the road, G.M. and F.L. each had had to stay in the lane to their right and refrain from entering and driving in the middle lane. It was established that the traffic in the given section of the road had been regulated incorrectly in that any person could have legitimately considered that the middle lane had been designated for his/her direction of traffic. At the same time, the report noted that the given deficiency in traffic regulation had had no causal link with the accident.

G.M. and F.L. were charged with breach of road traffic regulations which had caused the death of a person.

On 15 April 2015 the case was brought before the Tavush Regional Court (“the Regional Court”) for trial.

On 7 December 2015 the Regional Court acquitted both accused. It found that they had not breached road traffic regulations in that they had driven in the middle lane precisely because road safety in the given area had been organised incorrectly. Also, no information had been obtained as to whether the lanes to their right had been free at the time when they had been driving in the middle lane; the expert report had merely been based on the assumption that it had been so.

Z.J. and the prosecutor appealed.

On 25 March 2016 the Criminal Court of Appeal upheld the judgment. It found that the reason why the accused had simultaneously driven in the middle lane had been the incorrect organisation of the road because, according to the road signs and markings, each of them could have legitimately considered that the middle lane had been designated exclusively for their use and that the vehicle driving in the opposite direction had not had the right to enter that lane.

On 21 April 2016 the decision of the Criminal Court of Appeal was served on Z.J.

On 11 May 2016 Z.J. appealed against that decision to the Court of Cassation.

On 24 June 2016 the Court of Cassation decided to leave the appeal without examination on the grounds that it had been lodged after the expiry of the statutory one-month time-limit whereas no request to restore that time ‑ limit had been submitted.

On 25 July 2016 Z.J. resubmitted his appeal and requested that the time-limit be restored essentially on the grounds that the decision of the Criminal Court of Appeal had been served on him belatedly.

On 24 August 2016 the Court of Cassation refused Z.J.’s request to restore the time-limit as unsubstantiated, leaving the appeal on points of law without examination.

The applicant complains under Article 2 of the Convention that the domestic authorities failed to ensure road safety and thus created a threat to human life. She also complains under the same provision that the investigation carried out by the domestic authorities was not sufficiently thorough and effective.

QUESTIONS TO THE PARTIES

1. Have all effective domestic remedies been exhausted, as required by Article 35 § 1 of the Convention? In particular:

a. Did Z.J. comply with the domestic rules and time-limits for lodging his appeal on points of law to the Court of Cassation?

b. Did the applicant have an effective domestic remedy to claim compensation for non-pecuniary damage from the State for the alleged violations of the Convention, and, if so, are there examples of relevant domestic case-law?

2. Was T. Jgamadze’s right to life, ensured by Article 2 of the Convention, violated in the present case? In particular:

a. Did the State comply with its duty to have in place an appropriate set of preventive measures geared to ensuring public safety and minimising the number of road accidents, including the duty to ensure the effective functioning of the relevant road safety regulatory framework (see Nicolae Virgiliu Tănase v. Romania [GC], no. 41720/13, § 135, 25 June 2019; Smiljanić v. Croatia , no. 35983/14, §§ 65 and 66, 25 March 2021)?

b. Having regard to the procedural obligation to set up an effective and independent judicial system capable of promptly establishing the facts, holding accountable those at fault and providing appropriate redress in the context of road traffic accidents (see Nicolae Virgiliu Tănase , cited above, §§ 137-38), were the proceedings in the present case in breach of the requirements of Article 2 of the Convention?