The ECHR found a violation of the requirements of article 2 of the Convention on the Protection of Human Rights and Fundamental Freedoms.

Заголовок: The ECHR found a violation of the requirements of article 2 of the Convention on the Protection of Human Rig Сведения: 2021-12-10 05:47:29

ECHR Ruling of March 25, 2021 in the case "Smiljani v. Croatia" (aplication No. 35983/14).

In 2014, the applicants were assisted in the preparation of the application. Subsequently, the aplication was communicated to Croatia.

In the case, an aplication was successfully considered about the ineffective application of traffic rules and the inadequate response of courts to the behavior of a repeat offender, whose fault caused a fatal accident. The case involved a violation of the requirements of article 2 of the Convention for the Protection of Human Rights and Fundamental Freedoms.




A relative of the applicants died as a result of a traffic accident caused by D.M., who, while intoxicated, drove through an intersection at a red traffic light. D.M. was convicted and sentenced to imprisonment for two years, of which he served about 14 months. D.M. had previously violated traffic rules. In addition, at the time when the traffic accident occurred, a number of cases of minor offenses in connection with driving under the influence of alcohol had already been initiated against him.

The applicants complained that the Croatian authorities had failed to properly apply their country's legislation governing traffic regulations by taking the necessary measures against D.M.




Regarding compliance with article 2 of the Convention

(a) The effect of the legislation regulating the rules of the road (substantive aspect). In the present case, it was alleged that there were shortcomings in the application of Croatian legislation. There was a good reason to protect society from harm caused as a result of violation of traffic rules, as recognized in relevant international documents, in the legislation and law enforcement practice of the respondent State, as well as based on common sense. The Croatian authorities should have sought to prevent road traffic accidents by applying deterrent and preventive measures in order to ensure compliance with the relevant rules and reduce the risks of careless or irresponsible behavior on the roads.

The current regulatory legal framework of Croatia provided for preventive measures aimed at ensuring public safety and minimizing the number of road accidents. The question was whether this regulatory framework was effectively applied in practice.

The competent authorities recognized D.M.'s actions in connection with the traffic accident as careless driving with deliberate or irresponsible disregard for the safety of others, which went beyond simple negligence. Previously, he repeatedly violated traffic rules, including driving drunk, violating the speed limit, ignoring the requirements of road signs. In the 12 years preceding the incident, D.M. He was prosecuted 32 times for various traffic violations, and the last time he was convicted of an offense committed less than two years before the event in question in the present case. Thus, the authorities had good reasons to consider him a repeat offender.

Nevertheless, D.M.'s driver's license was temporarily withdrawn only twice for a short time. Indeed, at the time of the incident, D.M. had a valid driver's license that allowed him to be a road user. For other offenses, he was sentenced to small fines or community service or a simple reprimand. Ten proceedings on cases of minor offenses against him were terminated due to the expiration of the statute of limitations or as a result of improper consideration of his case by police officers. At the time of the incident in question, proceedings were initiated against him on a misdemeanor case in connection with driving a vehicle under the influence of alcohol. The police notification of the fine stated that an order had been issued to withdraw D.M.'s driver's license, but after the applicant challenged this decision in a Croatian court, there was no indication that the court was considering the possibility of withdrawing his driver's license before the end of the trial. In the ruling issued on the results of this proceeding, the court of first instance mistakenly found that D.M. had not been convicted before, therefore decided that the imposition of a fine was a sufficient punishment and that there was no need to withdraw his driver's license.

Although the Croatian authorities have taken some measures against D.M., they have not used a systematic and comprehensive approach, consisting in the application of deterrent and preventive measures capable of putting an end to repeated serious violations of traffic rules by D.M. This approach would require taking measures aimed primarily at reducing risk factors for road safety, for example, such as revoking his driver's license or withdrawing it for a longer period, imposing an obligation to undergo repeated training in traffic rules or treatment for alcohol addiction and, if necessary, applying more severe and restraining sanctions for his actions. The adoption of these measures would comply with the mechanisms established in the relevant legal acts and the standards adopted by the Croatian authorities and set out in international documents.

Although the Court cannot speculate whether the issue would have been resolved differently if the authorities had acted differently, the relevant criterion provided for in article 2 of the Convention does not require evidence that "in the absence" of non-fulfillment of obligations or inaction on the part of the authorities, the death of the applicant's relative would not have occurred. Rather, it was sufficient to establish that there were numerous cases where the Croatian authorities at various levels failed to take appropriate measures against the ongoing illegal behavior of D.M. and, consequently, to guarantee the effective application in practice of preventive measures aimed at ensuring public safety and minimizing the number of road accidents went beyond not effective coordination or omission. Thus, the Croatian authorities were responsible within the meaning of their positive obligation under article 2 of the Convention.




The case involved a violation of the requirements of article 2 of the Convention (adopted by six votes in favor with one against).

(b) The effectiveness of the judicial system in dealing with violations of traffic safety rules (procedural and legal aspect). The present case also concerned the improper sentence imposed by D.M. for causing the death of a relative of the applicants and the delay in the execution of this sentence.

According to the Criminal Code of Croatia, the courts of this State had the opportunity to sentence D.M. to imprisonment for a term of three to ten years. However, the Municipal court decided to use the norm available in the legislation of Croatia to apply a penalty below the minimum prescribed by law, sentencing him to two years in prison. Having no intention of interfering with the choice of punitive measures by the Croatian courts against D.M. and assessing the proportionality of these measures to the offense, the European Court could not but note that the Municipal Court in its assessment did not take into account that D.M. he was fined several times in the framework of proceedings in cases of minor offenses. In addition, the municipal court's reference to the fact that before the commission of the offense in question, D.M.'s behavior was in accordance with the law, contradicted his previous behavior as a driver. In such circumstances, the commutation of D.M.'s sentence to a level below the lowest limit did not seem to be the result of a thorough examination of all relevant considerations.

The relevant Croatian legislation also provided that a custodial sentence should be executed immediately and that its execution could be postponed only in exceptional circumstances. It was not entirely clear why the execution of D.M.'s sentence was postponed for one year after its entry into force, which could not be considered justified. In particular, the applicants complained several times about the non-execution of the sentence of imprisonment imposed on D.M.. Such an unjustified delay did not comply with the obligation of the Croatian authorities, according to article 2 of the Convention, to immediately execute the sentences of the criminal court that have entered into force.

Taken together, the identified shortcomings of the response by the Croatian authorities indicate that the legislation of this country on road safety applied in the present case was not strict and had little deterrent effect in order to ensure effective prevention of the commission of such illegal behavior in the future. It is also impossible to admit that the actions of the Croatian authorities could guarantee public confidence in their commitment to the rule of law and the ability to suppress any manifestations of tolerance for illegal acts.




The case involved a violation of the requirements of article 2 of the Convention (adopted by six votes in favor with one against).




In the application of article 41 of the Convention. The European Court awarded the applicants jointly 26,000 euros in compensation for moral damage.



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