MARIN v. ROMANIA
Inadmissible
Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall
1. The applicant, Ms Valentina Marin, is a Romanian national, who was born in 1971 and lives in Giurgiu. She was represented before the Court by Mr B.O.S. Ujeniuc, a lawyer practising in Giurgiu. 2. 3. On 20 March 2010 the applicant’s son was hit by a car while crossing the road and died. 4. On the same date the domestic authorities identified the driver and opened a criminal investigation against her for unintentional killing. In addition, they collected evidence, including inter alia witness testimonies and photographs of the scene of the accident. 5. On the same date the Giurgiu Medical Forensic Service produced a necropsy report which concluded that the victim’s lethal injuries had been caused by the car accident. It also noted that the victim had a large quantity of alcohol in his blood. 6. On 20 July 2010 the applicant joined the criminal proceedings as a civil party and claimed pecuniary and non-pecuniary damage. 7. On 6 September 2010 a technical expert report was produced in the case. It concluded that the applicant’s son had been responsible for the accident because he had crossed the road through an area that did not allow pedestrian crossing and without taking the required precautions. The car was driving within the lawfully allowed speed limit and the driver could not have prevented the accident. 8. By a decision of 26 October 2010 the Giurgiu Prosecutor’s Office discontinued the criminal proceedings against the driver on the ground that not all the elements of an offence had been met. The applicant challenged the decision before the hierarchical prosecutor. 9. By a final decision of 6 December 2010 the hierarchical prosecutor attached to Giurgiu Prosecutor’s Office dismissed the applicant’s challenge as ill-founded. The applicant appealed against the decision before the domestic courts. She argued that according to some of the witness statements there was reason to believe that the passenger in the car had also contributed to the accident. Consequently, she requested that the court allowed a new technical expert report in order to clarify the circumstances of the accident, that the witnesses be confronted with one another and that they undergo a polygraph test. 10. On 16 March 2011 the Giurgiu District Court allowed the applicant’s action, quashed the prosecutor’s orders and ordered the reopening of the criminal investigation. In addition, it instructed the prosecutor’s office to rehear and confront all the witnesses in the case and to order a new technical expert report which could clarify the level of the passenger’s involvement in the accident. In addition, it left the applicant’s request for polygraph tests to the prosecutor’s margin of appreciation, given that those involved in the events had to consent to the test. 11. On 20 April 2011 the Giurgiu Prosecutor’s Office reopened the criminal investigation and administered the additional evidence requested by the domestic court. 12. On 20 October 2011 the technical expert report produced by the Bucharest Forensic Laboratory concluded that the driver was driving within the lawful speed limit. Both the driver and the victim could have prevented the accident if the victim had not continued crossing the road and the driver had applied the brakes. However, it was impossible to determine if and how the passenger influenced the outcome of the accident. 13. By a decision of 24 November 2011 the Giurgiu Prosecutor’s Office, relying on the available evidence, indicted the driver and sent the case to trial before the Giurgiu District Court. 14. Between 24 November 2011 and 31 October 2012 the Giurgiu District Court adjourned the proceedings several times in order to allow the parties inter alia to prepare their defense, to submit evidence as well as oral and written observations. 15. On 8 October 2012 the National Forensic Institute in Bucharest produced a third technical expert report in respect of the case following the request of the first-instance court. Its conclusions confirmed the conclusions of the technical expert report produced on 20 October 2011. 16. By a judgment of 31 October 2012 the Giurgiu District Court convicted the driver for unintentional killing and sentenced her to two years imprisonment, suspended. In addition, it ordered jointly the driver and the insurance company covering the car to pay the applicant EUR 400,000 for non-pecuniary damage. It held that the driver had seen the applicant’s son and his group of friends and she had realized that they amounted to a potential danger because they had been agitated and loud. She had honked the horn of the car, had reduced the speed of the car and had tried to move away from the group by changing lanes. But once the youngsters started running across the street, the driver had no reaction to break until after she had hit the applicant’s son. Consequently, she had failed to act in a way that could have been reasonably expected of her. While applying the brakes might not have changed the outcome of the accident, the driver would have been acquitted, because she would have done everything possible to avoid the accident. In respect of the driver’s civil liability, the court noted that the victim was more responsible for causing the accident than the driver was. Consequently, it dismissed the applicant’s claim for pecuniary damage. The driver and the insurance company appealed on points of law (recurs) against the judgment. 17. By a final judgment of 23 January 2013 the Bucharest Court of Appeal allowed the appeals on points of law, quashed the judgment of the first-instance court, acquitted the driver and dismissed the applicant’s civil claims. It held that the driver had not broken any driving regulations at the time of the accident. In addition, it considered that in determining whether the driver could have avoided the accident and could have acted even more diligently than she had, a whole range of factors needed to be considered including the driver’s personal circumstances, namely her age and driving experience. The criminal liability would have been engaged even if the driver had obeyed all the rules, but had proved to be insufficiently concentrated on driving and if it could have been shown that by paying better attention she could have avoided the accident. According to the available evidence, including the expert report ordered by the first-instance court, the driver had two seconds to react to the group’s and the victim’s behavior. While the applicant’s son was running across the road, speaking on the phone, intoxicated and not paying attention to the incoming traffic, he had an unexplained moment of hesitation. Consequently, the driver was caught by surprise and had no time to react by breaking. In addition, the fact that the driver was young and an inexperienced driver who had obtained her driving license in 2009 also needed to be taken into account. In these circumstances, the driver could not be blamed for failing to apply the brakes at the time of the impact. Therefore, she could not be held responsible for the accident. The court also justified the dismissal of the civil action joined to the criminal proceedings on the lack of any guilt on the part of the car’s driver.