Information Note on the Court’s case-law 249
March 2021
Smiljanić v. Croatia - 35983/14
Judgment 25.3.2021 [Section I]
Article 2
Positive obligations
Ineffective implementation of road traffic regulations and judicial system response to repeat offender who caused a fatal collision: violation
Facts – The applicants’ relative was killed in a road traffic collision caused by D.M., who had sped through a red light at a junction while under the influence of alcohol. He was convicted and sentenced to a period of imprisonment of two years, of which he served some fourteen months. D.M. had a history of road traffic regulations breaches and a set of minor offences proceedings for drink-driving were pending against him at about the same time as the incident.
The applicants complained that the domestic authorities had failed to enforce the domestic legal framework of road traffic regulations by taking adequate measures with respect to D.M.
Law – Article 2:
(a) A functioning road safety regulatory framework (substantive limb)
The case concerned allegations of deficiencies in the implementation of the regulatory framework. There was a compelling reason to protect society against harm in road traffic, as recognised by relevant international materials and domestic law and policy, and as a matter also of common sense. The State had to seek to avert traffic accidents by enforcing, through adequate deterrence and preventive measures, compliance with the relevant rules aiming to reduce the risks of dangerously careless or reckless conduct in road traffic.
The relevant domestic legal framework had provided for appropriate preventive measures geared to ensuring public safety and minimising the number of road accidents. The question was whether that regulatory framework had effectively operated in practice.
D.M.’s conduct in relation to the road traffic collision had been considered by the relevant authorities as involving reckless driving in wilful or wanton disregard for the safety of others which had gone beyond mere negligence. He had had a long history of breaches of the relevant road traffic regulations, including drink-driving, speeding and failing to obey road signs. In the twelve years preceding the incident, he had been registered thirty-two times in police records as a perpetrator of various traffic offences and he had last been convicted for an offence committed less than two years prior to the incident. The authorities therefore had had good reasons to consider him a repeat offender.
Nevertheless, his driving licence had temporarily been confiscated twice for only short periods of time. Indeed, at the time of the incident D.M. had had a valid driving licence allowing him to participate in road traffic. For other breaches, he had been punished by small fines or otherwise penalised by community service or merely a reprimand. Ten minor offences proceedings against him had been discontinued either due to prescription or improper processing of the case by the police. At about the time of the incident, he was being prosecuted in minor offence proceedings for an offence of drink-driving. An order for the confiscation of his driving licence had been made in the police penalty notice but, after he had challenged that notice in a domestic court, there was no indication that the court had considered seizing his licence pending the outcome of the trial. In the first-instance judgment in those proceedings, the court had erroneously established that D.M. had not been previously convicted and thus had considered that a fine was a sufficient sanction, without confiscation of his driving licence.
Although the domestic authorities had taken certain measures against D.M., they had failed to take a comprehensive and integrated approach of applying effective deterrent and preventive measures to put an end to his continuous serious breaches of road traffic regulations. Such an approach would have required taking measures with a primary function to reduce risk factors for road traffic safety by, for instance, annulling his driving licence or confiscating it for a longer period of time, imposing traffic re-education, substance abuse treatment and, where appropriate, applying more severe and dissuasive sanctions for his conduct. Taking such measures would have been in line with the mechanisms put in place in the relevant domestic regulatory framework and standards endorsed by the Government, as well as those set out in relevant international materials.
While the Court could not speculate whether the matter would have turned out differently if the authorities had acted otherwise, the relevant test under Article 2 could not require it to be shown that “but for” the failing or omission of the authorities, the death would not have occurred. Rather, it was sufficient to find that the multiple failures of the domestic authorities at different levels to take appropriate measures against D.M.’s continuous unlawful conduct, and thus to ensure the effective functioning in practice of the preventive measures geared to ensuring public safety and minimising the number of road accidents, had gone beyond mere negligent coordination or omission. The State’s accountability from the standpoint of its positive obligation under Article 2 had therefore been engaged.
Conclusion: violation (six votes to one).
(b) An effective judicial system for dealing with road safety regulation breaches (procedural limb)
The case also concerned the inadequacy of the sentence imposed on D.M. for causing the death of the applicants’ relative and the delayed enforcement of that sentence.
The Criminal Code had given the domestic courts the possibility of handing down a prison sentence of between three and ten years. However, the Municipal Court had chosen to rely on the possibility provided under the relevant domestic law of imposing a penalty that was below the minimum allowed by law, sentencing him to two years’ imprisonment. Without intending to interfere with the domestic courts’ choice of punitive measures taken against D.M. and without intending to judge the proportionality of those measures to the offence, the Court could not but note that when making its assessment, the Municipal Court had not made reference to the fact that D.M. had been several times fined in minor offences proceedings. Moreover, the Municipal Court’s reliance on the fact that before the offence in question, D.M.’s conduct had been in compliance with the law, stood in stark contrast to his previous conduct as a driver. In those circumstances, the mitigation of D.M.’s sentence to below the statutory minimum did not appear to have taken place upon careful scrutiny of all the relevant considerations related to the case.
The relevant domestic law had also provided that the imprisonment procedure be treated urgently, and that enforcement of the sentence could only be postponed in exceptional circumstances. It was not completely clear why the enforcement of D.M.’s sentence had been postponed for one year after it had become final, and it could not be regarded as reasonable. In particular, the applicants had needed to complain several times of a failure to enforce D.M.’s sentence of imprisonment. Such an unjustified delay had not been in conformity with the State’s obligation under Article 2 to execute the final criminal court’s judgments without undue delay.
Taken jointly, the identified deficiencies in the domestic authorities’ response suggested that the domestic regulatory framework of road safety, as implemented in the instant case, had been far from rigorous and had had little dissuasive effect capable of ensuring effective prevention of such unlawful acts. It also could not be said that the domestic authorities’ conduct had been able to secure public confidence in their adherence to the rule of law and their ability to prevent any appearance of tolerating unlawful acts.
Conclusion: violation (six votes to one).
Article 41: EUR 26,000 jointly, in respect of non-pecuniary damage.
(See also Bljakaj and Others v. Croatia, 74448/12, 18 September 2014, Legal Summary)
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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