SPATARU v. ROMANIA - 5843/16 (Judgment : Right to life : Fourth Section Committee) [2020] ECHR 678 (06 October 2020)

JUDGMENT STRASBOURG 6 October 2020 This judgment is final but it may be subject to editorial revision. In the case of Spătaru v. Romania, The European Court of Human Rights (Fourth Section), sitting as a Committee composed of: Faris Vehabović, President, Iulia Antoanella Motoc, Carlo Ranzoni, judges, and Ilse Freiwirth, Deputy Section Registrar, Having regard to: the application against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Romanian nationals, Ms Mihaela Spătaru and Mr Gheorghe Spătaru (“the applicants”), on 8 March 2016; the decision to give notice to the Romanian Government (“the Government”) of the application; the parties’ observations; Having deliberated in private on 15 September 2020, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1. The applicants complained that the criminal investigation into the death of their son had lacked diligence and had been ineffective. They relied on Article 6 of the Convention. THE FACTS 2. The first applicant, Ms Mihaela Spătaru, was born in 1952 and the second applicant, Mr Gheorghe Spătaru, was born in 1945. The applicants live in Braşov and were represented by Mr T. Țărcan, a lawyer practising in Brașov. 3. The Government were represented by their Agent, Ms C. Brumar, of the Ministry of Foreign Affairs. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. Around 11 p.m. on 20 July 2006 the Arad Police Department (“the Police Department”) were notified that the applicants’ son had been found dead on a national road outside the town of Chişineu-Criş and that there were signs of an accident. 6. On the same date the Police Department initiated a criminal investigation into the circumstances of the applicants’ son’s death. They carried out an on-site investigation. According to the on-site investigation report, the Police Department took photographs of the area where the applicants’ son’s body had been found, took measurements, noted down the exact location and position of the body, and collected several items found at that location. They also noted that no eyewitnesses to the accident had been identified. 7. On an unspecified date the Police Department took several measures designed to identify the perpetrator and the vehicle that he or she had been driving. Among other things, they informed all the local and border police officers, as well as those from the nearby towns, villages and counties, about the incident and shared the information available to them in order to be able to gather information on the identity of the possible perpetrator and on his or her vehicle; they contacted the local Vehicle Registration Office in order to determine the make and type of the vehicle involved in the event on the basis of the various items gathered at the scene; and they ordered that shops selling and buying vehicle parts be checked in order to identify any recent transactions that could lead to the identification of the vehicle. 8. On 21 July 2006 the Police Department instituted criminal proceedings in rem for involuntary manslaughter and for leaving the scene of an accident without permission from the police. Their decision was confirmed on 24 July 2006 by the Chişineu-Criş Prosecutor’s Office (“the Prosecutor’s Office”). On the same date the Police Department commissioned a forensic autopsy report and a forensic toxicology report in respect of the applicants’ son. 9. On 22 July 2006 the Arad Forensic Service (“the Forensic Service”) produced the autopsy report. It concluded that the applicants’ son’s death had been violent and had resulted from an internal haemorrhage caused by thoracic-abdominal trauma involving multiple rib fractures, lung injuries and the rupture of internal organs. The injuries could have been caused by being hit with hard objects or compression suffered following a car accident. 10. On 24 July 2006 the Forensic Service produced the toxicology report concerning the alcohol level in the applicants’ son’s blood. It concluded that his blood alcohol level was 0.09%. 11. Between 8 February 2007 and 24 January 2008, the Police Department and the local Vehicle Registration Office attempted to identify the type of the vehicle that had hit the applicants’ son on the basis of items collected at the scene where the body had been found. On the latter date the Police Department produced a report, which noted that the type of the vehicle in question could not be determined. 12. On 7 September 2006 and 22 January 2007, following enquiries by the first applicant, the Police Department and the Prosecutor’s Office, respectively, informed her about the evolution of the investigation. 13. On 15 and 26 January 2007 the authorities took statements from the victim’s brother in an attempt to determine why the victim had been at the location where he had been found dead. 14. On 4 February 2007, 30 November 2011 and 2 December 2013, the second applicant complained to the Prosecutor’s Office about the manner in which the investigation had been conducted. He argued, among other things, that the authorities had made futile attempts to identify the type and make of the vehicle, that they had not clarified whether brake marks had been found near the victim’s body, and that they had not explored the possibility that his son had been killed in a different location and that his body had been moved afterwards to the location where it had been found. 15. On 9 February 2007 and 8 January 2014 the Prosecutor’s Office informed the second applicant about the general steps and decisions taken in the case during the investigation. 16. On 19 November 2007 the Police Department took steps to determine the type and make of the vehicle that had hit the applicants’ son on the basis of a tyre mark found on his body. According to a report produced on the same date by the Police Department, their efforts were unsuccessful. 17. On 31 August 2010 the Police Department classified the case in the category of cases where the perpetrator was unknown. Subsequently, they informed the first applicant of that decision. 18. Following a request by the applicants in November 2011 for information about the investigation, the case was reviewed by the Prosecutor’s Office, but no new evidence was uncovered that could have led to the identification of the perpetrator. 19. On 22 August 2014 a prosecutor attached to the Prosecutor’s Office closed the investigation in the case on the ground that the statute of limitations for criminal liability had expired. The applicants’ subsequent challenge against that decision was dismissed by a more senior prosecutor attached to the Prosecutor’s Office on 23 September 2014. 20. The applicants appealed to the domestic courts against the decisions of the Prosecutor’s Office. They argued that their son had been the victim of a murder disguised as a traffic accident and not of involuntary manslaughter. 21. On 25 November 2014 the Chişineu-Criş District Court (“the District Court”) held that the criminal investigation into the circumstances of the applicants’ son’s death should be reopened. It held that the investigation had been superficial and had not sought to uncover the truth. The Police Department had gathered evidence during the first few days of the investigation - namely the on-site investigation report, the photographs and the autopsy report - without subsequently examining any other significant evidence. Given the available description of the scene of the incident and the other elements found at that location, it could not be presumed that it had been an accident. Therefore, the authorities had been wrong in classifying the incident as a case of involuntary manslaughter and not as murder. 22. The District Court held that the authorities had failed to investigate and determine immediately after the incident where the victim had been travelling to and from, how he had arrived at the location where he had been found, whether he had still been alive when he had arrived in the area, whether he had been involved in a fight, and whether he had been drinking alcohol nearby. With the passing of time all this information could prove difficult to clarify. 23. The District Court further held that the authorities had had a duty to identify all the persons the victim had had contact with prior to his death as revealed by the available testimonies. In addition, it would have been very useful to have determined the victim’s time of death in order to know whether he had died long before his death had been reported to the police. 24. The District Court considered that a criminological expert report should be produced in the case in order to determine, among other things, the circumstances of the incident, the speed of the vehicle that had collided with the victim, the victim’s position at the time of impact, the area where the impact had taken place, the type of vehicle that could have collided with the victim given the various items found in the area where the body had been found, the type and size of the tyres, and the plausibility of the different hypotheses in the case given the victim’s position and the tyre mark found on his body. 25. On 6 January 2015 the Prosecutor’s Office referred the case to the Arad Prosecutor’s Office to carry out a murder investigation. 26. On 17 February 2015 the Arad Prosecutor’s Office commissioned the criminological expert report ordered by the District Court (see paragraph 24 above). 27. On 14 July 2015 the Timişoara Inter-county Laboratory for Criminological Expert Reports produced the report as instructed. It concluded that it would not be possible to determine the circumstances of the incident until the vehicle that had hit the victim had been found. Nor was it possible to determine the speed of the vehicle and the location of the impact. It was possible that the impact between the vehicle and the victim had taken place on the road. The victim’s position at the moment of impact could not be determined with certainty, but it could not be ruled out that the victim had been standing on the road, knocked down and then run over by the vehicle’s wheels. The vehicle involved in the incident and the size and type of its tyres could not be identified from the available evidence and it could not be determined whether the vehicle had been driving forwards or backwards. 28. On 19 August 2015 a prosecutor attached to the Arad Prosecutor’s Office closed the investigation in the case on the grounds that the conditions for the offence of murder had not been met. It held that the criminological expert report had not excluded the possibility that the victim had been standing on the road at the moment of impact, knocked down and then run over by the vehicle’s wheels. The prosecutor considered that in these circumstances there was nothing to suggest that the classification of the offence should be changed from involuntary manslaughter to murder. 29. On 6 October 2015 the more senior prosecutor attached to the Arad Prosecutor’s Office dismissed the applicants’ subsequent challenge against the lower prosecutor’s decision and upheld it. 30. The applicants appealed to the domestic courts against the decisions of the Arad Prosecutor’s Office. They argued that the investigation had been incomplete and had failed to clarify the circumstances of the case. 31. By a final judgment of 26 November 2015, the Arad County Court dismissed the applicants’ appeal as ill-founded and upheld the decisions by the Arad Prosecutor’s Office. RELEVANT LEGAL FRAMEWORK 32. The relevant provisions of the former and current Romanian Civil Code, Code of Civil Procedure, and Code of Criminal Procedure concerning the type of proceedings available to victims of traffic offences and/or to their relatives in order to determine the criminal and civil liability of persons suspected of such offences are set out in Nicolae Virgiliu Tănase v. Romania ([GC], no. 41720/13 , §§ 66-70, 25 June 2019). THE LAW I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 33. Relying on Article 6 of the Convention, the applicants complained that the criminal investigation into the death of their son had not been carried out diligently and had been ineffective. The Court, which is master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 114 and 126, 20 March 2018 ), considers that in the light of the circumstances of the case and the specific arguments put forward by the applicants, their complaint falls to be examined exclusively from the angle of the procedural limb of Article 2 of the Convention. The relevant part of this provision reads as follows: “1. Everyone’s right to life shall be protected by law. ... ...” A. Admissibility 34. The Court notes that the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. B. Merits 1. Submissions by the parties (a) The applicants 35. The applicants argued that the available evidence clearly showed that the authorities had failed to carry out an effective investigation into the circumstances of their son’s death. They had failed to collect all the relevant evidence and to take all the necessary measures that would have helped clarify the circumstances of the case promptly and diligently. They had delayed the investigation, had merely classified the case as one with an unknown perpetrator and had waited for the statute of limitations to expire. 36. The applicants submitted that the authorities bore responsibility for not identifying the vehicle that had hit their son. In addition, they had simply ignored the possibility of an intentional killing, even though there had been several reasons why such a possibility should have been explored. Furthermore, the expert who had produced the criminological expert report in the case had been unable to provide answers to the points raised by the District Court because of the failure of the authorities to collect the available evidence adequately and to identify the vehicle involved in the incident. 37. The applicants contended that the authorities had ignored the relevant domestic law imposing a duty on them to collect the relevant evidence and take the necessary measures in order to uncover the truth. Moreover, they had made insufficient and superficial efforts to identify the unknown perpetrator in the case. (b) The Government 38. The Government argued that the authorities had reacted promptly to the news of the applicants’ son’s death and had carried out a prompt and comprehensive on-site investigation aimed at determining the exact circumstances in which he had died. Moreover, the subsequent investigation had been expeditious, diligent and effective and had clarified the circumstances of the case sufficiently well to dispel any concerns that the death had occurred in suspicious circumstances. The fact that the District Court had quashed the decision of the Prosecutor’s Office to close the investigation in the case (see paragraph 21 above) could not lead to the conclusion that the authorities had not complied with their procedural obligation under Article 2 of the Convention. The court had addressed the applicants’ arguments and had given the authorities an opportunity to collect additional evidence in the case, which had eventually proved that their initial solution had been adequate. The authorities could not be held responsible for not being able to identify the vehicle involved in the accident. This was due to objective reasons, namely the absence of eyewitnesses or other evidence that could have led to the identification of the vehicle in question. 39. The Government further noted that the criminological expert report produced in the case (see paragraph 27 above) had confirmed that it had been objectively impossible to identify the vehicle. The expert report had also confirmed that the circumstances of the accident and the speed of the vehicle at the moment of impact could not be determined in the absence of the actual vehicle. In addition, it had confirmed the authorities’ theory that the applicants’ son had died as a result of a traffic accident and of an involuntary offence. The autopsy report (see paragraph 9 above) also suggested that the cause of death of the applicants’ son had been a traffic accident. 40. The Government emphasised that the applicants had been involved in the investigation and that the authorities had examined their requests promptly. None of the information collected by the authorities from the applicants and from the victim’s brother (see paragraph 13 above) could have resulted in the identification of the third parties that had been in contact with the victim before his death; nor had it suggested that the applicants’ son had been killed intentionally. All the evidence supported the authorities’ theory that the applicants’ son’s death had been caused involuntarily. 41. The Government contended that the authorities were under a duty to pursue only the plausible theories concerning the case and to collect the relevant evidence in this regard. They were not under a duty to pursue all the theories advanced by the relatives of the victim or to adduce all the evidence requested by them in the absence of any indications supporting such requests. 2. The Court’s assessment 42. The Court reiterates the principles set out in its case-law concerning the authorities’ procedural obligation in circumstances concerning death caused as a result of road traffic incidents (see Nicolae Virgiliu Tănase v. Romania [GC], no. 41720/13 , §§ 157-71, 25 June 2019). 43. In the instant case, the Court notes at the outset that the applicants’ son was found dead on a national road as a result of what seemed to be a traffic accident (see paragraph 5 above). While the national authorities eventually took the view that the applicants’ son had indeed died as a result of an involuntary accident, both the authorities and the applicants had some recurring suspicions that the death might in fact have been caused intentionally (see paragraphs 14, 21, and 36 above). 44. In these circumstances, the Court is of the opinion that in the applicants’ son’s case it was not clearly established from the outset that his death had been the result of an accident or other unintentional act, and that the hypothesis of unlawful killing was at least arguable on the facts. Therefore, given the suspicious circumstances surrounding his death, the domestic authorities were required to conduct a criminal investigation attaining the minimum threshold of effectiveness in order to shed light on the circumstances of the death regardless of whether the presumed perpetrator had been a State agent or not. The fact that the investigation ultimately accepts the hypothesis of an accident has no bearing on this issue, since the obligation to investigate is specifically intended to refute or confirm one or other hypothesis (see Mustafa Tunç and Fecire Tunç v. Turkey [GC], no. 24014/05 , §§ 133 and 171, 14 April 2015, and Nicolae Virgiliu Tănase , cited above, §§ 160-61). The above-mentioned requirement continued to exist until such time as the investigation established that the death had not been inflicted intentionally (see Nicolae Virgiliu Tănase , cited above, § 163). 45. In this connection the Court notes that immediately after they were notified of the applicants’ son’s death the police started a criminal investigation into the circumstances which had led to the loss of his life. They tried to identify eyewitnesses to the incident and collected evidence (including measurements, items found at the scene and photographs - see paragraph 6 above) capable of clarifying the circumstances in which it had occurred. 46. In addition, the authorities commissioned an autopsy and a toxicology report and took some measures in an attempt to identify the perpetrator and the vehicle that had hit the victim. The applicants were actively involved in the proceedings. Both during the investigation and the court proceedings they had access to the case file and were able to challenge the acts and measures implemented by the authorities and to ask for additional evidence to be included in the case file (see paragraphs 7-16 above). 47. At the same time, the Court notes that on 23 September 2014 the investigative authorities adopted a decision to discontinue the investigation (see paragraph 19 above). That decision was, however, quashed by a domestic court, who considered that further evidence, including a criminological expert report and additional evidence, had to be produced in order to clarify the circumstances of the case (see paragraphs 22-24 above). In addition, the court considered that the evidence already collected by the authorities could not lead to a presumption that the accident had happened involuntarily and therefore the investigating authorities had been wrong in classifying the incident as a case of involuntary manslaughter and not as murder (see paragraph 21 above). 48. The Court further notes that following the reopening of the investigation, the authorities produced the criminological expert report ordered by the court (see paragraph 27 above). However, it does not appear from the available evidence that they took any significant steps to clarify many of the other questions raised by the court with a view to establishing the circumstances of the case - such as the victim’s time of death, whether he had been alive when he had arrived at the location where he had been found dead, whether he had been involved in a fight, whether he had been drinking alcohol nearby - or to identify all or at least some of the persons the victim had had contact with prior to his death as revealed by the available testimonies. 49. The facts of the case therefore suggest that the investigating authorities did not take all the necessary steps in order to carry out a thorough investigation which would be compatible with the Convention requirements. 50. In respect of the promptness of the investigation, the Court notes that the criminal investigation in the case started on 20 July 2006 and ended on 26 November 2015, more than nine years and four months later (see paragraphs 6-31 above). Also, the Court notes that after 31 August 2010, when the Police Department classified the case in the category of cases where the perpetrator was unknown (see paragraph 17 above), no significant investigative or procedural steps were taken by the authorities in the case for almost four years, until 22 August 2014, when the Prosecutor’s Office discontinued the investigation on the ground that the statute of limitations for criminal liability had expired (see paragraph 19 above). 51. The Court can accept that the case concerning the applicants’ son’s death was somewhat complex, given the various hypotheses the investigators had to explore. It can also accept that the complexity of the case was further increased by the fact that the investigators were unable to identify the perpetrator or the vehicle involved in the incident. However, it considers that the complexity of the case did not release the authorities from their obligation to remain active during the proceedings and, as suggested by the domestic court, to constantly take steps, collect evidence and make efforts to clarify the circumstances of the case. 52. Having regard to the manner in which the case was investigated and the length of the criminal investigations, the Court considers that the authorities failed to show the requisite diligence in dealing with the criminal case, as required by Article 2 of the Convention. 53. In view of the above findings (see paragraphs 49-52 above), the Court considers that the criminal investigation into the applicants’ son’s death cannot be said to have been effective. 54. The Court notes that, once it has eventually been established by the criminal investigation, as in the present case, that the death was not inflicted intentionally, a civil remedy may be viewed as sufficient for the domestic authorities to discharge their procedural obligation under Article 2 of the Convention (see Nicolae Virgiliu Tănase , cited above, § 163). 55. The Court also notes, however, that the Government have not put forward any argument or evidence to suggest or show that civil proceedings initiated by the applicants in the present case would have had any prospect of success in clarifying the circumstances of the incident or in providing the applicants with adequate redress for the death of their son while the identity of the person involved in the applicants’ son’s death, as well as the degree of his or her responsibility for the death, remained unknown. 56. There has accordingly been a violation of Article 2 of the Convention under its procedural limb. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 57. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 58. The applicants claimed 20,000 euros (EUR) in respect of pecuniary damage for the expenses incurred following their son’s death, including funeral and cleaning expenses. They submitted several invoices in support of their claim. They also claimed EUR 50,000 in respect of non-pecuniary damage for their suffering. 59. The Government submitted that there was no causal link between the violation of the Convention and the pecuniary damage alleged by the applicants. Moreover, this claim was not supported by sufficient evidence. Furthermore, the non-pecuniary damage claimed by the applicants was excessive. 60. The Court does not discern any causal link between the violation found and the pecuniary damage alleged by the applicants. Consequently, it rejects this claim. 61. However, it considers that the applicants suffered some non‑pecuniary damage as a result of the infringement of their rights, as guaranteed by the procedural limb of Article 2 of the Convention, which cannot be made good by the mere finding of a violation. Making an assessment on an equitable basis, it awards the applicants jointly EUR 15,000 under this head, plus any tax that may be chargeable. B. Costs and expenses 62. The applicants also claimed EUR 700 for costs and expenses incurred before the Court. They submitted six invoices totalling 1,637 Romanian lei (approximately EUR 360) for translation expenses. 63. The Government argued that the applicants had not provided sufficient evidence in support of the amount claimed. In addition, the latter was excessive. 64. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the applicants jointly the sum of EUR 360 covering the costs for the proceedings before the Court, plus any tax that may be chargeable to the applicants. C. Default interest 65. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the application admissible; 2. Holds that there has been a violation of Article 2 of the Convention under its procedural limb; 3. Holds (a) that the respondent State is to pay the applicants jointly, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 15,000 (fifteen thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 360 (three hundred and sixty euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 6 October 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Ilse Freiwirth Faris Vehabović Deputy Registrar President BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII