CEDH · CASELAW;CLIN;ENG — 24 mars 2020

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Romania - 78643/11 Judgment 24.3.2020 [Section IV] Article 2 Article 2-1 Effective investigation Failure to establish the causes of the uprooting of a tree which led to a fatal road accident, and any possible negligence on the part of the authorities: violation Facts – The applicants, a married couple, were driving on a public main road when a tree on the roadside became uprooted and fell on their car. They suffered multiple injuries and three other occupants of the vehicle died. The applicants complained, among other things, of the lack of an effective investigation enabling those responsible for the accident to be identified and punished, and of the length of the investigation. Law – Article 2 (a)   Procedural limb – The traffic police had opened a criminal investigation on the day of the accident but it had subsequently been beset by irregularities. The authorities had failed in their duty to seize crucial evidence regarding the uprooted tree, and to preserve the evidence regarding the samples taken from the trunk and roots of the tree. This had had a major impact on the effectiveness of the investigation, as the experts had been unable to prepare a forensic report and reach formal conclusions regarding the uprooting of the tree. The public prosecutor’s office had been unable to establish the cause of the uprooting and whether the authorities had been negligent in the performance of their duties. Furthermore, for a period of two years until the investigation file was sent to the public prosecutor together with the proposal from the traffic police for the proceedings to be discontinued, very few measures had been taken by the police and no one apart from the driver had been identified as being potentially responsible for the accident. The national judicial authorities had also, on several occasions, noted multiple shortcomings in the investigation. The fact that those shortcomings had not been addressed cast serious doubt on the rigour of the investigators’ work. During the criminal investigation the judicial authorities had failed to clarify certain aspects by omitting to establish the exact role of the various road-safety authorities and their employees. Subsequently, having established that there had been no breach of the road-safety rules in the present case, the judicial authorities had concluded that the uprooting of the tree had been an unforeseeable accident. Lastly, the investigation had not been concluded until eight and a half years after the accident, although the case had not been a particularly complex one. This length of time was unreasonable and was attributable to the authorities which had omitted to take the necessary measures from the outset of the investigation. As to the possibility for the applicants to exercise civil remedies in order to have the responsibility of the road-safety authorities and their employees examined and obtain an order for them to pay damages, an action in tort had had no real prospect of being examined before the final outcome of the criminal proceedings. Moreover, in view of the period of eight years and six months that had elapsed between the opening of the investigation and its final closure, and the fact that evidence of crucial importance for the establishment of responsibility had not been gathered and preserved by the authorities, it would be excessive to require the applicants to attempt a fresh remedy in order to establish possible responsibility for the accident on the part of the State agencies concerned and their employees. Hence, it could not be said that the judicial system had made it possible to establish the role and full responsibility of the State agents or authorities in relation to the accident. Conclusion : violation (unanimously). (b)   Substantive limb – It could not be ruled out that, in certain circumstances, the acts and omissions of the authorities in the context of policies to ensure safety in public places could engage their responsibility under the substantive limb of Article 2 of the Convention. Nevertheless, where a Contracting State had adopted an overall legal framework and legislation tailored to the different contexts with regard to public spaces, in order to protect the persons using them, the Court could not accept that matters such as an error of judgment on the part of an individual player or negligent coordination among professionals, whether public or private, were sufficient of themselves to make a Contracting State accountable from the standpoint of its positive obligation under Article 2 of the Convention to protect life. The applicants did not complain in the Court proceedings of the lack of a regulatory framework governing safety on public roads, or of systemic deficiencies regarding the protection of persons on those roads on account of a failure to maintain the trees. They simply complained of the alleged omission of the competent national authorities to take the appropriate measures to prevent the accident. It had indeed been for the national authorities to determine the appropriate measures that should be taken, and the inspections of roadside trees that were necessary, in order to ensure the safety of persons using the public roads. At the time of the accident national legislation had been in place relating to safety on main roads and, in particular, to the maintenance and monitoring of the trees planted along those roads, in order to prevent accidents. The legislation covered the cataloguing, monitoring and cutting-back of stands of trees, as well as the various types of inspection, the frequency of such inspections and the persons responsible for conducting them. Where the need for safety measures to prevent potential risks to life had been identified by the national authorities, any omission in ensuring the continuing effectiveness of those measures should be closely scrutinised by the domestic courts, particularly where it was alleged that such omissions had resulted in serious injury or death. Accordingly, the Court had to ascertain whether the existing mechanisms had been capable of shedding light on the circumstances and causes of the accident. That issue nevertheless fell to be examined from the standpoint of the State’s procedural obligation under the procedural limb of Article 2. In view of these considerations, the present case did not disclose any failure on the State’s part to comply with its obligation to protect the applicants’ right to life. Conclusion : no violation (six votes to one). Article 41: EUR 20,000 in respect of non-pecuniary damage to the first applicant; EUR 5,000 for non-pecuniary damage to the second applicant. (See also Nicolae Virgiliu Tănase v. Romania [GC] , 41720/13, 25 June 2019, Information Note 230 )   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes