The conviction of a systematic offender of the Road Traffic Regulation for the death of a motorcyclist to a sentence less than the threshold of the sentence and its delayed execution violated the procedural part of the right to life!
JUDGMENT
Smiljanić v. Croatia 25.03.2021 (app. no. 35983/14)
SUMMARY
A motorcycle driver was killed in a car accident after a collision with a well-known businessman in Zagreb, after an illegal crossing at a red light by the latter. The businessman had committed about 35 violations of the Road Traffic Regulations offenses in a period of about 2 years, including the violation of red lights, driving under the influence of alcohol, excess speeding, etc. The only result was that his driving license was temporarily revoked and minimun fines were imposed on him.
For the negligent homicide of the motorcyclist, he was sentenced to 3-10 years in prison with a sentence of only 2 years. The domestic courts, that is, imposed a sentence below the threshold. This sentence was also served with an unjustified delay.
According to the ECtHR, the insufficient measures against the well-known businessman’s continuing road crime did not lead to the necessary ensuring of the effective operation of the precautionary measures to ensure public safety and the multiple failures of the domestic authorities to take appropriate measures against the continue road crime of the driver of the car, and ensure the effective operation in practice of precautionary measures to ensure public safety and minimize the number of road accidents, exceeded simple negligence or omission.
The ECtHR found a violation of the essential part of the right to life (Article 2 of the ECHR).
The Court also ruled that the domestic authorities did not show the necessary diligence to impose an appropriate sentence and considered the sentence of 2 years in prison to be insufficient. The sentence imposed was less than the minimum and the one-year delay in its execution was not reasonable. The Court found for these reasons a violation of the procedural part of the right to life (Article 2).
The ECtHR awarded 26,000 euros for non-pecuniary damage and 4,540 euros for court costs.
PROVISION
Article 2
PRINCIPAL FACTS
The applicants are respectively the parents and sister of late S.S., who was killed in road traffic.
At around 2 a.m. on 7 July 2012 in Zagreb, D.M., a well-known businessman, drove through a red light in his sport utility vehicle (SUV) and hit the applicants’ relative, who was driving his motorcycle through a green light at a junction. The applicants’ relative died at the scene.
At the time of the incident D.M. was under the influence of alcohol and had to be taken to a police sobering-up detention unit.
An on-site inspection carried out by the police found that D.M. had a valid driving licence issued by Zagreb Police.
According to the available material, before the incident D.M. had been registered thirty-five times in police records for various traffic offences, including drink-driving, speeding and not obeying road signs. These records concerned the period between March 2000 and May 2012, the last conviction being for an offence committed in November 2010. The relevant details are the following:
– he was fined between 100 and 1,000 Croatian kunas (HRK, approximately 13 to 130 Euros (EUR)) for seventeen offences;
– on one occasion he was sentenced to a community sanction and had one reprimand by a police officer;
– his driving licence was temporarily confiscated on two occasions: between 24 November 2001 and 25 February 2002, and 20 and 23 May 2006;
– proceedings were discontinued for nine offences due to prescription while one set was halted owing to the police’s improper processing of the case;
– he was either acquitted of the remaining offences or the outcome is unknown.
According to the available record of D.M.’s minor offences convictions, he was convicted twice of minor offences: in March 2010 he was found guilty of not obeying road signs (an offence committed in February 2010) while in May 2011 he was found guilty of speeding (committed in November 2010).
According to his criminal record, he has never been convicted of a criminal offence.
At about the time when the applicant’s relative was killed, a set of minor offences proceedings was pending against D.M. for drunk-driving.
In particular, on 23 October 2010 the police issued a penalty notice to D.M. for drunk-driving and an order for the confiscation of his driving licence for a period of nine months. D.M. challenged the penalty notice in the Zagreb Minor Offences Court (Prekršajni sud u Zagrebu; hereinafter: “the Minor Offences Court”).
On 1 June 2011 the Minor Offences Court found D.M. guilty and fined him HRK 2,000 (approximately EUR 260). It considered that it was not necessary to confiscate D.M.’s driving licence as he had never been convicted before, which suggested that he was not a reoffender and that a fine was a sufficient and appropriate sanction.
Upon an appeal by D.M., this judgment was quashed by the High Minor Offences Court (Visoki prekršajni sud Republike Hrvatske) and a retrial was ordered. In the resumed proceedings, D.M. informed the Minor Offences Court that he had accepted and paid the fine imposed on him by the judgment of 1 June 2011. On 23 December 2013 the Minor Offences Court found D.M. guilty but stressed that the fine had already been paid.
THE DECISION OF THE COURT…
(a) Substantive aspect of Article 2
At the outset, the Court finds that the central issue of the present case is the alleged deficient functioning of the relevant road safety regulatory framework to address a repeated and habitual unlawful conduct in road traffic by a person who has eventually caused the fatal road collision in which the applicants’ relative lost his life. This case therefore concerns, specifically, the allegations of deficiencies in the implementation of the regulatory framework, which also sets it apart from other cases which concern, more specifically, the substantive positive obligation to take preventive operational measures to protect an identified individual from another individual in case of the existence of a real and immediate risk to life, which is a distinct aspect of the State’s positive obligations under Article 2 (see Fernandes de Oliveira, cited above, § 103; Nicolae Virgiliu Tănase, cited above, § 136; and Kotilainen and Others, cited above, §§ 69 and 78).
The question whether there has been a failure by the State to comply with its above-mentioned regulatory duties calls for a concrete rather than an abstract assessment of any alleged deficiency. The Court’s task is not normally to review the relevant law and practice in abstracto, but to determine whether the manner in which they were applied to, or affected, the applicant or the deceased gave rise to a violation of the Convention. Therefore, the mere fact that the regulatory framework may be deficient in some respects is not sufficient in itself to raise an issue under Article 2. It must be shown to have operated to an individual’s detriment (see Fernandes de Oliveira, cited above, § 107). Moreover, in the light of the importance of the protection afforded by Article 2, the Court must subject the complaint about loss of life to the most careful scrutiny, taking into consideration all the relevant circumstances of the case (see, among many others, Banel v. Lithuania, no. 14326/11, § 67, 18 June 2013).
The Court notes that the Croatian regulatory framework, as relevant for the present case, considered breaches of road safety as offences against public welfare which represent a high level of general danger to society. It provided both for the criminal and minor offences sanctions for such conduct, as well as preventive measures of seizure and confiscation of a driving licence if there was a risk of the suspect or perpetrator reoffending. The relevant legislation also provided for a possibility of imposing a duty of substance treatment for those who committed the offences under the decisive influence of drugs or alcohol. Moreover, the Road Traffic Safety Act provided for a possibility to annul a driving licence for repeated violations of road traffic safety regulations.
In sum, having regard to the above, the Court finds that the relevant domestic legal framework provided for appropriate preventive measures geared to ensuring public safety and minimising the number of road accidents. It remains to be seen whether this regulatory framework effectively operated in practice.
The applicants’ relative was killed in a road traffic collision caused by D.M., who had sped through a red light at a junction while being so under the influence of alcohol that his driving ability was significantly reduced. Such conduct was considered by the relevant authorities as involving reckless driving in wilful or wanton disregard for the safety of others which goes beyond the merely negligent causing of a road accident In other words, D.M. was aware of the kind of risk which could attend his conduct and took it regardless.
D.M. had a long history of breaches of the relevant road traffic regulations, including drink-driving, speeding and failing to obey road signs. In the period preceding the incident, between March 2000 and May 2012, D.M. had been registered thirty-two times in police records as a perpetrator of various traffic offences. His last conviction had been for an offence committed in November 2010. Nevertheless, his driving licence was temporarily confiscated twice for only short periods of time, first for three months in 2001-2002 and then for just three days in 2006. For the other breaches of traffic regulations, he was either punished by small fines or otherwise penalised by community service or merely a reprimand. In addition, ten minor offences proceedings against him were discontinued either due to prescription or improper processing of the case by the police.
At about the time of the incident in which the applicants’ relative lost his life, D.M. was being prosecuted in minor offences proceedings for an offence of drink-driving in October 2010. An order for the confiscation of his driving licence was made in the police penalty notice for a period of nine months. However, after he had challenged that notice in the minor offences court, there is no indication that the court considered seizing his driving licence pending the outcome of the trial. It should also be noted that in the first-instance judgment in those proceedings, given on 1 June 2011, the court erroneously established that D.M. had not been previously convicted and thus considered that a fine was a sufficient sanction, without confiscation of his driving licence. Upon the quashing of that judgment on appeal, the proceedings only came to an end in December 2013 after a new minor offences court judgment and after D.M. had already paid his fine.
*Given D.M.’s long record of various road traffic regulations breaches, the authorities had good reasons to consider him a repeat offender. Despite that, he only had his driving licence confiscated twice for short periods of time in 2001-2002 and 2006. Indeed, at the time of the incident D.M. had a valid driving licence allowing him to participate in road traffic. In that connection, an indication of the domestic authorities’ lack of diligence to address D.M.’s unlawful conduct can be seen in how the relevant minor offences court established the question of D.M.’s previous conviction for minor offences, erroneously finding that he had not been convicted of such offences and that it was therefore not necessary to confiscate his driving licence.
Another strong indication of deficiency in the application of the relevant mechanisms to address D.M.’s unlawful actions is the fact that the domestic authorities allowed ten different sets of minor offences proceedings against him to be discontinued owing to prescription and improper processing of the cases (compare Remetin v. Croatia, no. 29525/10, § 99, 11 December 2012). The domestic authorities also continued imposing small fines and other alternative sanctions on D.M., which obviously had no deterrent effect and did not bring his conduct into compliance with the relevant traffic regulations.
Although the domestic authorities did take certain measures against D.M., they failed to take a comprehensive and integrated approach of applying effective deterrent and preventive measures to put an end to his continuous serious breaches of road traffic regulations. Such an approach would have required taking measures with a primary function to reduce risk factors for road traffic safety by, for instance, annulling his driving licence or confiscating it for a longer period of time, imposing traffic re-education, substance abuse treatment and, where appropriate, applying more severe and dissuasive sanctions for his conduct. The taking of such measures would have been in line with the mechanisms put in place in the relevant domestic regulatory framework and the above-noted standards endorsed by the Government in its road safety Programme, as well as those set out in the relevant international materials, aimed at ensuring public safety and minimising the number of road accidents.
D.M.’s persistent unlawful conduct and breaches of road safety regulations finally resulted in the causing of the fatal road traffic collision in which the applicants’ relative died. While the Court cannot speculate whether the matters would have turned out differently if the authorities had acted otherwise and ensured that the relevant regulatory framework was effectively implemented in practice with respect to D.M.’s repeated unlawful conduct , the relevant test under Article 2 cannot require it to be shown that “but for” the failing or omission of the authorities the death would not have occurred (see, mutatis mutandis, Bljakaj and Others v. Croatia, no. 74448/12, § 124, 18 September 2014). Rather, what is important, and sufficient to engage the responsibility of the State under Article 2, is to show that the deficiencies in the operation of the relevant regulatory framework worked to an individual’s detriment.
In this connection, the Court would stress that it is not its task to determine how particular measures of the domestic legal order should have been administered in practice with regard to D.M.’s repeated unlawful conduct in road traffic, which finally resulted in the death of the applicants’ relative. For the Court, it is sufficient to find that the above-noted multiple failures of the domestic authorities at different levels to take the appropriate measures against D.M.’s continuous unlawful conduct, and thus to ensure the effective functioning in practice of the preventive measures geared to ensuring public safety and minimising the number of road accidents, went beyond the mere negligent coordination or omission; they thus engaged the State’s accountability from the standpoint of its positive obligation under Article 2.
The Court therefore finds that there has been a violation of the substantive limb (positive obligations) of Article 2 of the Convention.
(b) Procedural aspect of Article 2
As already noted, the domestic authorities characterised D.M.’s conduct causing the road traffic collision that resulted in the death of the applicants’ relative as involving reckless driving in wilful or wanton disregard for the safety of others and road traffic regulations going beyond the merely negligent causing of a road accident. According to the domestic legal framework, such conduct is considered an intentional offence of causing traffic accident leading to death which warrants recourse to criminal law and the imposition of a sentence of imprisonment. The Government did not contend that the matter could have been effectively pursued outside the framework of criminal proceedings.
The present case therefore differs from cases concerning deaths caused by road accidents involving simple negligence where the framework of civil remedies might be considered to be adequate and sufficient. This case rather involves a situation where, as explained in the Court’s case-law, a recourse to the mechanisms within the framework of criminal law was required.
The Court notes that immediately after the incident the police carried out an on-site inspection. The State Attorney’s Office immediately began an investigation during which a number of witnesses were questioned, and forensic expert reports were commissioned On the basis of the evidence obtained during the investigation, the State Attorney’s Office indicted D.M. in the Municipal Court on 31 July 2012 on charges of causing a road accident with fatal outcome. The first-instance judgment was adopted in December 2012 and it was confirmed by the County Court in May 2013. Moreover, the applicants were given a sufficient opportunity to participate in the proceedings and to put forward their arguments concerning the case.
In these circumstances, the Court cannot conclude that the authorities failed to make a serious attempt to find out what happened. Moreover, the Court does not see any deficiencies in the manner in which the relevant procedural steps were taken following the event, or in the way the applicants took part in the proceedings, that could call into question the domestic authorities’ compliance with the procedural obligation under Article 2. It should also be noted that the applicants’ complaints of lack of objectivity of some of the judges are unsubstantiated and unfounded.
However, the case at issue, as submitted by the applicants, also concerns the inadequacy of the sentence imposed on D.M. for causing the death of the applicants’ relative and the delayed enforcement of that sentence.
In this connection, it is not the task of the Court to ascertain whether the domestic courts correctly applied domestic criminal law; what is at issue in the present proceedings is not individual criminal-law liability, but the State’s responsibility under the Convention. There is also no absolute obligation for all prosecutions to result in conviction, or indeed in a particular sentence. The Court must grant substantial deference to the national courts in the choice of appropriate measures, while also maintaining a certain power of review and the power to intervene in cases of manifest disproportion between the gravity of the act and the punishment imposed (see A. v. Croatia, no. 55164/08, § 66, 14 October 2010, with further references; see also, Armani Da Silva, cited above, § 238).
The Court notes that the Criminal Code gave the domestic courts the possibility of handing down a prison sentence of between three and ten years . However, the Municipal Court chose to rely on the possibility provided under the relevant domestic law of imposing a penalty that was below the minimum allowed by law, sentencing him to two years’ imprisonment. Eventually, D.M. was released on parole after serving some fourteen months of his sentence.
Without intending to interfere with the domestic courts’ choice of punitive measures taken against D.M. and without intending to judge the proportionality of those measures to the offence, the Court cannot but note that when making its assessment the Municipal Court, while taking into account the fact that D.M. did not have any previous criminal convictions, did not make reference to the fact that according to the available records D.M. had been several times fined in minor offences proceedings. Moreover, the Court cannot but to note that the Municipal Court’s reliance on the fact that before the offence in question, D.M.’s conduct had been in compliance with the law, stands in stark contrast to his previous conduct as a driver. In these circumstances, the mitigation of D.M.’s sentence below the statutory minimum does not appear to have taken place upon a careful scrutiny of all the relevant considerations related to the case.
It is further noted that the relevant domestic law provided that the imprisonment procedure be treated urgently, and that enforcement of the sentence could only be postponed in exceptional circumstances. On the facts of the case, it is not completely clear why the enforcement of D.M.’s sentence was postponed for one year after it became final (compare, by contrast, Zoltai v. Hungary and Ireland (dec.), no. 61946/12, §§ 31-32, 29 September 2015). In that connection, the Court notes in particular that the applicants needed to complain several times of a failure to enforce D.M.’s sentence of imprisonment.
In these circumstances, it cannot be held that the domestic authorities displayed the requisite diligence in enforcing the custodial sentence in respect of D.M. The one-year delay indicated above cannot be regarded as reasonable. Accordingly, such an unjustified delay in enforcing the judgment against D.M. was not in conformity with the State’s obligation under Article 2 to execute the final criminal court’s judgments without undue delay.
Having in mind the above considerations, while the Court considers that each of the identified deficiencies in the domestic authorities’ response to D.M.’s unlawful conduct might not necessarily, separately and in itself, call into question the domestic authorities’ compliance with their obligations under Article 2, it finds that, taken jointly, these deficiencies suggest that the domestic regulatory framework of road safety, as implemented in the instant case, proved to be far from rigorous and had little dissuasive effect that was capable of ensuring the effective prevention of unlawful acts, such as those complained of by the applicants. Moreover, it cannot be said that conduct of that kind by the domestic authorities was able to secure public confidence in their adherence to the rule of law and their ability to prevent any appearance of tolerating unlawful acts.
The Court therefore finds that there has been a violation of the procedural limb of Article 2 of the Convention.
Just satisfaction: 26,000 euros (EUR) for non-pecuniary damage and EUR 4,540 for costs and
expenses
