CONSTANTIN v. ROMANIA
Inadmissible
Branko Lubarda;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra
1. The applicant, Mr Eugen Constantin, is a Romanian national, who was born in 1959 and lives in Timişoara. He was represented before the Court by the National Organisation for Human Rights (Organizaţia Naţională Pentru Drepturile Omului), an association based in Timişoara. 2. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, of the Ministry of Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 26 February 2008 at around 6 p.m. the applicant’s twenty-four year old son G.C. was on his way to work. While he was on the pavement intending to cross the street at a zebra crossing, he was hooked by the lateral right side of a lorry and dragged under the wheels of its trailer. He died immediately. The lorry, driven by F.M., was carrying six workers from their place of work to their homes. 5. Immediately after the accident the police arrived at the scene and started drafting the crime scene report, which included identification data of the parties involved in the accident and of two eyewitnesses, various measurements, a description of the lorry and of the area where the accident happened as well as photographs. F.M. was sent to the hospital for a blood alcohol test. 6. The same day a criminal investigation was started against F.M. for unintentional killing. The police took written statements from four eyewitnesses. C.I. explained that she had been a few metres behind G.C., who had been on the pavement “at the zebra crossing”, when he had stumbled on a manhole cover then lost his balance and fallen under the wheels of a small lorry. She mentioned that, when the accident had happened, the traffic lights had been green for cars. S.L.V., B.I. and C.V., who were passengers in the lorry involved in the accident, stated that the lorry in question had been moving slowly on the inside lane towards green traffic lights when they had seen the victim hurrying on the pavement towards their vehicle. When S.L.V. and C.V. had looked in the right side mirror, they had seen the victim stumbling and falling under the lorry. The lorry’s driver had stopped immediately to see what had happened. C.V. also mentioned that the lorry had been travelling at a speed of no more than 30 kph because at that time of day the traffic was busy. At a later date, N.M. and G.D., who were also in the lorry at the time of the accident, gave similar statements. 7. In March 2008 statements were taken from R.C. and M.R., work colleagues of the victim, as well as the victim’s brother, C.B, who had all seen the accident from across the street. R.C. mentioned that she had been waiting for the bus to go to work together with M.R. and other colleagues including C.B. After their bus left the traffic lights and arrived at the stop where she had been waiting, she saw that the cars in the opposite lane were all stopped at the red traffic light and that only the lorry in question was moving. Immediately afterwards, she saw C.G. lying on the road. She explained that the lorry had been moving at high speed and that she had seen C.G. standing on the kerb of the pavement in front of the zebra crossing and not crossing the street. She did not see how C.G. had fallen under the lorry’s wheels. M.R. and C.B. gave similar accounts of the events. 8. On an unspecified date H.A., a witness proposed by the applicant, stated to the police that at the time of the accident he had been walking on the opposite side of the street when he had heard a noise and had turned to see what had happened. At that point he had noticed that all the cars had stopped on both sides of the road and that the traffic lights had been red for cars. The traffic lights for the zebra crossing had been green but he had not seen any pedestrian crossing at that moment. 9. On various dates polygraph tests were carried out on some of the witnesses. The results of blood alcohol tests came back negative for both the victim and F.M. 10. On 3 April 2008 the applicant joined the criminal proceedings as a civil party. 11. On 4 September 2008 an independent technical expert was chosen and specific questions were raised for his analysis in the presence of F.M. and the applicant. A record was drawn up stating that the parties had had no objections to the expert chosen or to the questions. Subsequently, the expert, accompanied by the applicant, went to the site of the accident for technical verifications. A record was drawn up of his findings, and of the applicant’s version of the facts, namely that C.G. had been crossing the street at a zebra crossing while the traffic lights were on green for pedestrians, when the lorry, which was moving at high speed, hooked him with its right side. 12. On 26 September 2008 the technical expert report was submitted to the investigating authorities. After a thorough analysis of the conflicting statements given by the work colleagues of the two parties, corroborated by the statement given by C.I., and with technical data such as the sequence of the traffic lights obtained from the traffic control authorities, the report established that on 26 February 2008 at around 6 p.m. F.M. was driving a small lorry with a trailer on the inside lane of the road next to the pavement. When the lorry reached the zebra crossing in question the traffic lights were green for cars and the victim, who was running towards the street, had tried to stop before stepping onto the road but had stumbled and bumped against the right side of the lorry’s trailer and was dragged underneath it. The expert mentioned that the speed of the truck could not be calculated mathematically because the brake marks had not been measured after the accident. However, from the distance to which the victim was thrown – 2.60 m – and the spot where the lorry stopped after the impact, it could be analytically inferred that the speed had been low. The report concluded that the driver had not breached any traffic rules and could not have avoided the accident. 13. On 14 November 2008 the applicant, represented by a lawyer, submitted objections to the technical expert report. He requested that the expert be required to determine precisely what the speed of the lorry had been, how the charge had been arranged in the open trailer, what had been the sequence of the traffic lights, whether the victim had been run over or hit by the lorry and whether the driver was guilty of causing the accident. On 27 November 2008 these requests were dismissed by the prosecutor in a reasoned decision since these aspects had already been clarified in the report. 14. The investigation was concluded on 27 November 2008 with the prosecutor’s decision not to pursue criminal charges against F.M. for the crime of unintentional killing because no guilt could be established. The prosecutor examined the conflicting statements given by the two sets of witnesses – the victim’s work colleagues and F.M.’s work colleagues – and balanced them against the statement of the independent witness C.I. as well as the findings of the technical expert report and concluded that F.M. had not breached any traffic rules and could not have avoided the accident. 15. The applicant challenged that decision but his complaint was rejected as ill-founded by the head prosecutor of the Prosecutor’s Office of the Timiş County Court on 29 December 2008. 16. The applicant challenged the prosecutors’ decisions before the Timişoara District Court. He averred that, considering the severity of the crime, it was necessary to at least charge F.M. with a crime and thus allow the opportunity for more thorough technical tests to be conducted, to further examine the discrepancies between the witness statements and to enable him to take part in the proceedings as an injured party. 17. On 22 April 2009 his complaint was allowed by the Timişoara District Court, which decided to send the case back to the prosecutor’s office to reopen the criminal proceedings in order to fully respond to the applicant’s allegations. 18. An appeal by the prosecutor on points of law (recurs) against the above judgment was allowed by the Timiş County Court on 23 November 2009. The County Court thoroughly examined the applicant’s complaints and the available evidence and considered that they had been fully and clearly answered by the investigation and that no additional expert reports or other investigative steps were necessary in the case. With respect to the applicant’s allegations that he could not take part in the proceedings, the court held that it had not been proved that the applicant’s procedural rights had been breached; for example, he had been able to propose witnesses. 19. On 9 April 2010 the applicant authorised the National Organisation for the Defence of Human Rights to request a reopening of the case before the Prosecutor’s Office of the High Court of Cassation and Justice. This request was forwarded to the courts for examination. 20. On 10 November 2010 the Timişoara District Court held that a reopening of the criminal proceedings in a case which had already been subject to the scrutiny of a court was only possible when new facts had been uncovered which had not been known to the investigating authorities at the relevant time. Since this was not the situation in the current case, the court declared the request inadmissible. An appeal by the applicant on points of law against that judgment was allowed on 5 January 2011 by the Timiş County Court. The court held that a request for reopening proceedings must first be examined and resolved by way of a reasoned decision by the prosecutor and only afterwards could it be brought before the courts. 21. The investigation was briefly re-opened following the above-mentioned court judgment. After new statements were taken from the applicant, F.M. and a new witness proposed by the applicant, on 16 November 2011 the prosecutor decided again not to pursue criminal charges in the case owing to a lack of negligence on the part of F.M. The new witness admitted that he had not in fact seen the accident but that the applicant had asked him to come and testify against F.M. 22. The applicant’s complaint against that decision was rejected with final effect by the Timişoara District Court on 11 June 2012. The court examined all investigative steps taken by the prosecutors in the case and decided that the applicant’s complaint was ill-founded. 23. The applicant was represented by a lawyer of his own choosing throughout the proceedings before the domestic courts.