ECHR decision of 24 March 2020 in the case "Marius Alexandru and Marinela Stefan V. Romania" (aplication N 78643/11).
in 2011, the applicants were assisted in preparing the aplication. The aplication was subsequently communicated to Romania.
The case successfully addressed an aplication about the failure of the authorities to determine the causes of the tree fall that led to the fatal traffic accident, the failure to conduct an effective investigation that would allow to identify the perpetrators of the accident and punish them, as well as the length of the investigation. The case violated the requirements of article 2 of the Convention for the protection of human rights and fundamental freedoms in its procedural and legal aspect. The case did not violate the requirements of article 2 of the Convention for the protection of human rights and fundamental freedoms in its substantive aspect.
FACTUAL BACKGROUND
The applicants, a husband and wife, were driving along a public main road when a tree fell to the side of the road and uprooted it. This tree fell on the applicants ' car, which sustained numerous injuries, and three other passengers were killed. Among other things, the applicants complained that an effective investigation had not been carried out to identify the perpetrators of the incident and punish them, and they also appealed against the length of the investigation.
POINT OF LAW
Regarding compliance with article 2 of the Convention (procedural and legal aspect). The traffic police opened a criminal case on the day of the incident, but further proceedings were delayed due to violations. The Romanian authorities failed in their duty to collect key evidence regarding the fall of the tree and to preserve samples collected from the trunk and roots of the tree. This significantly affected the effectiveness of the investigation, since experts could not draw up a forensic report and make an official conclusion about the causes of the tree fall. The Prosecutor's office was unable to determine the cause of the tree's fall, or whether the authorities were negligent in carrying out their duties.
Moreover, for two years, until the case file was sent to the Prosecutor's office along with a proposal to stop the proceedings, the traffic police took very little action, and, except for the driver of the car, no one else was named as potentially guilty of the incident. The Romanian courts also noted numerous shortcomings in the course of the investigation on several occasions. The fact that these shortcomings were not addressed raises serious doubts about the thoroughness of the investigators ' work.
During the investigation of the criminal case, the judicial authorities did not clarify some issues, because they did not determine the exact role of various road services and their employees. Subsequently, after finding that the road safety rules were not violated in the case, the domestic courts concluded that the fall of the tree was an unforeseen circumstance.
In conclusion, eight and a half years after the incident, the investigation was still incomplete, although the present case was not particularly complex. This length of investigation was not justified, and the Romanian authorities were blamed for its length, as they did not take the necessary measures from the very beginning of the investigation.
With regard to the applicants ' ability to use civil remedies to bring the road safety service and its employees to justice and order them to pay damages, the civil claim for damages had no real prospects of being considered until the final decision on the criminal case was made. Moreover, given that eight and a half years have elapsed from the beginning of the investigation to its conclusion, and that the authorities have not collected or preserved evidence that was key to identifying the perpetrators in the case, it would be excessive to require the applicants to try a new remedy in order to determine the possible responsibility of public authorities and their employees for the incident.
Thus, it cannot be considered that the judicial system has made it possible to establish the role and responsibility of public officials or public authorities for a road accident.
RESOLUTION
The case violated the requirements of article 2 of the Convention (procedural and legal aspect) (adopted unanimously).
Regarding compliance with article 2 of the Convention (substantive aspect). It cannot be excluded that, in certain circumstances, the actions and omissions of the authorities in the context of ensuring security in public places may entail the responsibility of the authorities under the substantive aspect of article 2 of the Convention. However, if a Contracting State adopts a General legal system and legislation drawn up in a different context in relation to public places in order to protect those who use them, the Court cannot accept that issues such as misjudgment on the part of an individual participant in the relationship or negligence in coordinating actions among professionals, whether public or private, are sufficient in themselves, that the Contracting State is responsible in terms of the positive duty to protect life provided for in article 2 of the Convention.
In the course of the case before the European Court of justice, the applicants did not complain about the insufficient legal framework governing safety on public roads, or about systematic violations related to the protection of the safety of persons on these roads due to the inability to monitor the trees along them. The applicants only appealed against the alleged failure of the authorized Romanian authorities to take appropriate measures to prevent the incident. Indeed, it was up to the Romanian authorities to determine the necessary actions to be taken, as well as to check the green spaces along the roads that were necessary to ensure the safety of people on the roads. At the time of the incident, Romania had legislation in place regarding safety on public roads, in particular the care and control of green spaces along roads to prevent accidents. This legislation regulated the census, control and maintenance of green spaces, as well as the various types of inspections, the frequency of these inspections and the persons responsible for them.
If the domestic authorities noted the need to take security measures aimed at preventing potential threats to human life, any omission in ensuring the long-term effectiveness of these measures should have been carefully checked by the Romanian courts, especially if it was alleged that such omission resulted in serious bodily injury or death. Consequently, the court should have checked whether the existing mechanisms could have clarified the circumstances of the present case and established the reasons for the incident. However, this issue should have been considered from the point of view of the state's obligation under the procedural and legal aspect of article 2 of the Convention. In view of the above arguments, the present case does not show any violation on the part of the Romanian authorities related to their duty to protect the applicants ' right to life.
RESOLUTION
The case did not violate the requirements of article 2 of the Convention (substantive aspect) (adopted by six votes in favor and one against).
COMPENSATION
In the application of article 41 of the Convention. The European Court awarded 20,000 and 5,000 euros each to the first and second applicants, respectively, in respect of non-pecuniary damage.