CASE OF CIOBANU v. THE REPUBLIC OF MOLDOVA
Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)
Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra
5. The applicant was born in 1984 and lives in Fîrlădeni. 6. Her late husband, Mr Alexandru Ciobanu (“the victim”), was a taxi driver and died at work, in a car accident on 6 April 2008. He was twenty-seven years’ old at the time and the father of a three-year-old child. The present application is about the circumstances of his death and the investigation carried out by the Moldovan authorities into those circumstances. 7. The accident happened at approximately 11.30 p.m. on 6 April 2008 in an illuminated two-way street with two lanes in the town of Hîncești. The speed limit was 40 k.p.h. and a solid line in the centre of the road indicated that no overtaking was allowed. A petrol station was located on one side of the road and there was a short broken line allowing cars to enter the petrol station from the opposite side of the road. 8. There are two versions of the events leading to the accident. The first version is based on the accounts of two eyewitnesses. According to them, the applicant’s husband was driving his Lada (“the victim’s car”) along the street and when he was level with the petrol station located on his left, he slowed down, indicated a left turn and then turned to the left. When his car had crossed the line in the centre of the road and was perpendicular to the road in the lane for traffic from the opposite direction, a speeding 5 series BMW car (“the grey car”) came from behind and hit it in the left side doors. The impact was so powerful that the victim’s car was lifted spinning up in the air at a height of several meters and was propelled onto a lamp post on the left side of the road. The grey car passed under the victim’s car and continued on its way for a while before coming to a complete stop. 9. The second version of the events was that of the grey car driver involved in the accident. He submitted that he had been driving at a speed of between 40 and 50 k.p.h. and had not overtaken any cars, when suddenly the victim, whose car had been parked on the right-hand side of the road, had started to turn left without looking out or indicating. The grey car driver claimed that he could not have applied his brakes or avoided the impact. He had a passenger in his car who submitted that he had not seen anything as he had been talking on the telephone at that very moment. Neither of the grey car occupants was injured in the accident. 10. According to measurements made by the police at the scene of the accident, the distance between the two cars involved in the accident after their complete stop was thirty-three metres. Experts later established that the grey car had hit the victim’s car at an angle of approximately ninety degrees. There were no skid marks, meaning that the grey car driver did not apply his brakes before impact. The victim died on the spot from multiple lethal injuries. 11. The police carried out an immediate examination of the scene of the accident and the grey car driver was taken to hospital, where he tested negative for the presence of alcohol in his blood. A criminal investigation was initiated the next day. 12. One of the witnesses questioned during the criminal investigation was a taxi driver, C., who had been driving along the same street and in the same direction as the victim. He submitted that the victim’s car had been further ahead but within sight. C. had been driving at a speed of approximately 60 to 70 k.p.h. when a speeding grey car had overtaken him in spite of the solid line on the centre of the road. He estimated that the grey car had been moving at a speed of 120 to 130 k.p.h. After overtaking his car, the grey car continued to drive in the lane for traffic coming from the opposite direction. C. claimed that he had seen the victim’s car ahead of him slowing down and indicating a left turn in front of the petrol station. As the victim’s car was turning left, the speeding grey car, which was still driving in the opposite lane, smashed into its left side. 13. Another witness was a student, G., who had been at a car wash across the road from the petrol station. He was standing there waiting for a taxi which he had ordered over the telephone and saw the entire scene. He was questioned on 17 October 2008 and submitted that the victim had been driving along the street before slowing down and indicating a left turn. After turning to the left, he was hit by a speeding grey car which had come from behind him in the lane for traffic coming from the opposite direction. G. estimated that the grey car driver had been travelling at approximately 100 k.p.h. and had not applied his brakes before the impact. 14. On 16 May 2008 an experiment was conducted by the prosecutor in charge of the case with the participation of the grey car driver and witness C. The applicant was not informed about it. The experiment consisted of measuring the time needed for a car to turn left at the place where the accident had happened and in the manner indicated by C. As a result of the experiment, it was established that the victim had needed approximately two seconds to make the manoeuvre of turning left. 15. On 27 May 2008 the prosecutor in charge of the investigation granted the grey car driver’s request to return his car to him. It had been held as a piece of evidence until that date. 16. On 28 May 2008 the applicant requested that a technical forensic investigation be conducted in order to determine, inter alia, the speed of the grey car, judging by the damage to both vehicles; the distance between the two cars when the victim’s car had started its manoeuvre; and whether the grey car could have avoided the impact by braking, had its driver been keeping to the legal speed limit. The request was partly granted by the prosecutor on 30 May 2008 and an expert from the Ministry of Justice was asked to reply only to the question whether the grey car could have avoided the impact if it had been moving at 50 k.p.h. and on the basis that the victim’s car had needed approximately two seconds to turn left. The expert was not provided with other information. The applicant was notified about the decision to conduct the forensic investigation on 19 June 2008. 17. In the meantime, on 3 June 2008, an expert from the Ministry of Justice issued a report in which he had taken as the basis of his investigation the fact that the grey car had been moving at 50 k.p.h. when the victim’s car had turned left. The report indicated that when the victim’s car had started its manoeuvre to the left, the grey car could have been twenty-eight metres behind it. It did not disclose the origin of the information concerning the distance of twenty-eight metres, nor did it contain any suggestion as to how the expert had come up with that figure. The report also indicated that the braking distance of a BMW of the kind involved in the accident moving at a speed of 50 k.p.h. was between thirty-one and thirty-nine metres. On the basis of the above figures, noting that the braking distance of the grey car was longer than the distance of twenty-eight metres between the cars, the report concluded that the grey car could not have avoided the impact by braking. 18. On 19 June 2008 the prosecutor in charge of the investigation ordered a new technical forensic investigation to determine the position of both vehicles involved in the accident in relation to each other and the road. 19. On 8 July 2008 another expert from the Ministry of Justice issued a report in which he concluded that the grey car had hit the left side of the victim’s car at an angle of approximately ninety degrees. The expert could not establish the position of the vehicles in relation to the road at the time of the impact since he had not been provided with sufficient information. 20. On 29 August 2008 the prosecutor in charge of the case ordered a third technical forensic investigation to determine the speed of the grey car, judging by the damage to both vehicles; the distance between the two cars when the victim’s car had started its manoeuvre; whether the grey car could have avoided the impact by braking, had it been keeping to the legal speed limit; and the manner in which both drivers should have behaved had they been respecting the provisions of the traffic code. 21. On 22 September 2008 the expert who had issued the first report on 3 June 2008, relying again on the facts as submitted by the grey car driver, concluded, inter alia, that there was no way of calculating the grey car’s speed; the grey car could not have avoided the impact by braking because its braking distance was longer than the distance between the two cars when the victim’s car had started the manoeuvre; the distance between the two cars when the victim’s car had turned left could not be determined, but on the basis of previous findings (see paragraph 17 above) it could have been around 27-28 metres; and that the grey car should have stopped when the victim’s car had started its manoeuvre, but had been unable to do so. 22. On 14 October 2008 a confrontation was conducted between witnesses C. and the grey car driver. Each of them kept to their initial version of the facts. 23. On 26 November 2008 the prosecutor in charge of the case ordered another forensic technical investigation by a commission of experts. The experts were requested to answer whether the grey car driver had had the right to overtake the victim’s car; whether before starting his manoeuvre the victim had been entitled to believe that the grey car driver would respect the traffic code rules; and what the grey car driver should have done when the victim’s car indicated a left turn and started its manoeuvre. 24. On 1 December 2008 the applicant requested that an independent expert of her choice be involved in the commission of experts. She nominated an engineer who was also a university professor and had a PhD in the field of traffic security. However, on 2 December 2008 the prosecutor rejected the request on the ground that the person proposed by the applicant was not licenced to practise as a judicial expert. It was decided that the person proposed by the applicant should participate in the commission of experts in the capacity of “specialist”. 25. On 19 December 2008 the expert who had issued the first report on 3 June 2008 together with another expert issued a forensic investigation report in which they refused to give answers to the first two questions because they were of a legal character. In answer to the third question, the experts said that the grey car driver should have reduced his speed. The specialist proposed by the applicant was not informed that a forensic investigation had been carried out. 26. On 23 March 2009 the Hâncești Prosecutor’s Office decided to discontinue the criminal investigation into the circumstances of Alexandru Ciobanu’s death. The prosecutor considered the testimonies of witnesses C. and G. unreliable because they had been contradicted by the findings in the forensic technical reports. On the other hand, the findings in those reports were found to be consistent with the submissions of the grey car driver. Accordingly, the prosecutor accepted the latter’s version of the facts and concluded that the victim had been responsible for the accident because, having been parked on the right-hand side of the road, he had turned left without looking out and making sure that the manoeuvre was safe. The applicant appealed, arguing, inter alia, that no independent experts of her choice had been involved in the forensic investigations and no confrontation had been carried out between the grey car driver and witness G. 27. On 9 April 2009 the next level of prosecutor from the Hâncești Prosecutor’s Office dismissed the applicant’s appeal and upheld the decision of the Hâncești Prosecutor’s Office of 23 March 2009. He argued that no independent expert opinion or supplementary confrontations had been necessary because the facts of the accident had been clearly established. The applicant challenged the decision of the Hâncești Prosecutor’s Office of 23 March 2009 before the investigating judge, who dismissed her appeal on 14 May 2009.