The fall of a tree on the highway and human death. Violation of the procedural part of the right to life by incomplete investigation in order to attribute liability

JUDGMENT

Marius Alexandru and  Marinela Ştefan v. Romania 24.03.2020 (no. 78643/11)

see here 

SUMMARY

Right to life and responsibility of the state.

The applicants were on their car traveling on the highway when a tree fell on their vehicle. They were seriously injured while their parents and the applicant’s brother died.

The Court reiterates that, in the event of death, the state must ensure an effective legal system and an independent organization that allows for timely investigation of the facts, the discovery of the perpetrators and adequate compensation of the victims and to take the necessary measures to protect the lives of persons under its jurisdiction.

In the present case, the ECtHR found irregularities in the investigation because the judicial authorities did not seek to specify the role and responsibility of the authorities and their employees in the accident, nor did they identify the facts. Since the proceedings lasted too long for about 8.5 years with no result, the Court unanimously held that there was a violation of the procedural part of the right to life (Article 2).

Concerning the State’s obligation to protect the citizens, the Court held that the Romanian State had taken all appropriate measures to maintain safety on the highways, and ruled by 6 votes to one that there was no violation of Article 2 in its substance leg.

Finally, it found the complaint under Article 6 § 1 inadmissible on the ground that the domestic remedies had not been exhausted.

PROVISIONS

Article 2

Article 6§1

PRINCIPAL FACTS

The applicants, Alexandru and Marinela Ștefan, are Romanian nationals who were born in 1983 and
1985 respectively. They are married and live in Bucharest.

The applicants complained of a failure by the State to protect their lives and those of their relatives
after an uprooted tree fell on their car in August 2007. The applicants, who were both in the car,
suffered multiple injuries; their parents and Ms Ștefan’s young brother died.
Mr and Mrs Ștefan relied in particular on Article 2 (right to life). Furthermore, they complained of
the lack of an effective investigation to identify and punish those responsible for the accident.

THE DECISION OF THE COURT…

The Court reiterates that, in the context of its positive obligation to protect the right to life, the State, in the event of death or personal injury that could potentially be fatal, must ensure an effective legal system and an independent organization that allows for timely investigation events, detention of the perpetrators and adequate compensation for the victims.

Application of these principles to the present case.

The Court noted that it had initiated a criminal investigation on the day of the traffic accident. Its effectiveness remains to be considered.

In this regard, the Court noted that the investigation in question had been stained by irregularities from the outset. Indeed, the documents in the case file show that the authorities failed to fulfill their obligation to collect substantial evidence – in the case of the uprooted tree – or to maintain it – in the case of specimens taken from the tree trunk and roots.

The Court observes that this had a significant impact on the effectiveness of the investigation, since one first forestry expert considered that it was no longer possible to carry out technical expertise in the case and that a second could not draw formal conclusions on the rooting of the tree. This inability to gather and maintain key evidence also prevented criminal prosecution from proving the causes of the tree’s uprooting and any negligence on the part of the authorities in carrying out their activities.

The Court also noted that in the course of the criminal investigation the judicial authorities did not seek to identify precisely the role played by the various public authorities and the employees reporting to each of those authorities road safety, thereby creating gray areas. Subsequently, the judicial authorities found that the further investigation failed to identify new facts and that the case file did not show that the road safety standards had been breached in this case. Consequently, they ended up with a random rooting of the tree that could not be predicted.

Finally, the Court noted that the investigation was not completed 8.5 years after the tragic accident in this case, although the case was not particularly complex. It considers that this period is unreasonable and that it is due to the facts that the authorities did not take the necessary measures or to the initiation of the investigation. It also observes that the applicants drew the authorities’ attention, in many cases, but in vain, during this process.

The Court considers that, in the particular circumstances of the case, it would be unnecessary to require the applicants to fille a new action in order to determine the possible liability of the public authorities involved and their employees in the accident. In the light of the foregoing, it cannot be considered that the Romanian judicial system, as applied in the present case, has made it possible for the agents or authorities of the State to be fully responsible for the accident at issue.

Accordingly, there has been a violation of Article 2 of the Convention in respect of its procedural limb.

As regards positive measures aimed at protecting life within the meaning of Article 2 of the Convention: the substance of that provision

(i) General principles

The Court recalls that the first sentence of Article 2, which is one of the essential provisions of the Convention and enshrines one of the fundamental values ​​of the democratic societies constituting the Council of Europe, obliges the state not only to avoid causing death “by intent, but also to take the necessary measures to protect the life of persons under its jurisdiction.

The Court has already ruled that the above positive obligations require States to lay down rules designed to protect the safety of people in public places and to ensure the effective functioning of this regulatory framework.

(ii) Application of these principles to the present case

The Court observes from the outset that the applicants do not condemn the absence of a regulatory framework for safety on the public motorway or the systematic failure to protect persons on the public motorway due to the lack of tree maintenance. They simply criticize the competent national authorities for failing to take appropriate measures to prevent the accident.

The Court noted that the documents in the case file showed that, at the time of the accident, there was national legislation on the safety of highways and, in particular, the maintenance and surveillance of the trees surrounding them. The Romanian state has adopted several standards, including the law on forestry, to prevent accidents caused by road plantations. These standards concern the inventory, monitoring or cutting of trees, as well as the different types of inspections, their frequency or their responsibilities.

Where, as is the case here, national authorities have identified the need for safeguards to prevent potential risks to life, any failure to maintain the effectiveness of such measures should be subject to close scrutiny by national courts, in particular when it is alleged that these omissions resulted in serious injury or death. In this case, the Court must examine whether the existing mechanisms have allowed the circumstances and causes of the accident to be clarified. However, this issue falls within the procedural obligation of the State

In the light of the foregoing, the Court considers that in the present case no failure was found by the State to fulfill its obligation to protect the applicants’ right to life.

The Court held:

By six votes to one non-infringement of Article 2 (right to life)

Unanimously, violation of Article 2 procedural part (investigation) – due to the failure of the Romanian authorities to conduct an effective investigation into the circumstances of the accident in August 2007.

As regards the infringement of Article 6 par. 1 it held that the complaint must be dismissed for non-exhaustion of domestic remedies, in accordance with Article 35 §§ 1 and 4 of the Convention.

Just satisfaction: EUR 20,000 to Mrs Ștefan and EUR 5,000 to Mr Ștefan (non-pecuniary damage),
and EUR 1,734 to the applicants jointly (costs and expenses)


ECHRCaseLaw

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