FOURTH SECTION

CASE OF DRAGOMIR v. ROMANIA

(Application no. 43045/08)

JUDGMENT

STRASBOURG
14 June 2016

This judgment is final but it may be subject to editorial revision.

DRAGOMIR v. ROMANIA JUDGMENT

In the case of Dragomir v. Romania,

The European Court of Human Rights (Fourth Section), sitting as a
Committee composed of:
Krzysztof Wojtyczek, President,
Egidijus Kris,
Iulia Motoc, judges,
and Fato Arac, Deputy Section Registrar,
Having deliberated in private on 24 May 2016,
Delivers the following judgment, which was adopted on that date:

PROCEDURE
1. The case originated in an application (no. 43045/08) against Romania
lodged with the Court under Article 34 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (the Convention) by a
Romanian national, Ms Constana Dragomir (the applicant), on
11 July 2008.
2. The applicant was represented by Ms M. Srbu, a lawyer practising in
Bucharest. The Romanian Government (the Government) were
represented by their Agent, Ms C. Brumar, of the Ministry of Foreign
Affairs.
3. On 14 February 2014 the application was communicated to the
Government.
4. The Government objected to the examination of the application by a
Committee. After having considered the Governments objection, the Court
rejects it.

THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1946 and lives in Bucharest.
6. On 24 April 2002 she was hit by a car while crossing the street. The
driver left the scene of the accident and took the applicant to hospital, where
she was diagnosed with a fractured spine. She underwent surgery five days
later and was released from hospital on 14 May 2002.
7. The police opened an investigation to clarify the circumstances of the
accident.

DRAGOMIR v. ROMANIA JUDGMENT

8. On 19 June 2002 the police took a statement from the applicant, in

which she complained that the driver had caused her bodily harm. She also
requested 20,000 US dollars (USD) from him in civil damages.
9. On 5 July 2002 the police officer in charge of the investigation
ordered a technical expert report.
10. On 8 July 2002 an eyewitness was interviewed by the police.
11. On 23 August 2002 a forensic medical report was attached to the
investigation file. It stated that the applicant had suffered injuries which
required forty to forty five days of medical care.
12. According to reports drafted by the investigating police officers, on
30 November 2002 and 16 January 2003 the applicant failed to attend the
police station to take note of the objectives set for the expert report. On
5 June 2003 the applicant went to the police station, where she submitted
additional questions to be answered by the expert.
13. On 18 February 2004 the police requested the assistance of an expert
to prepare the technical expert report in the case.
14. On 29 March 2004 the expert examined the scene of the accident in
the presence of the driver and the applicant. The driver declared that he
agreed with the experts findings.
15. The technical expert report was finalised on 25 August 2004. It
stated that the applicant was to blame for the accident because she had
crossed the street in an unmarked place without paying attention. The
driver, who had been turning his vehicle at the time, had not breached any
traffic regulations. The expert appointed by the driver agreed with the
report, while the expert appointed by the applicant drafted a dissenting
opinion concluding that the fault lay entirely with the driver, who had
turned his car without paying attention.
16. The applicant took note of the expert opinions on
23 November 2004. On 17 January 2005 she submitted objections, to which
she received a reply on 25 January 2005.
17. On 31 January 2005 the Prosecutors Office attached to the
Bucharest District Court decided not to prosecute the driver, since the fault
of the accident lay entirely with the applicant. The applicant lodged a
complaint against that decision, but it was rejected as ill-founded by a
hierarchically superior prosecutor on 4 April 2005.
18. A complaint by the applicant against the two decisions was declared
inadmissible by the Bucharest District Court on 2 June 2005. She lodged an
appeal on points of law (recurs) against that judgment. On 4 August 2005
her appeal was allowed by the Bucharest County Court, which decided to
send the case back to the prosecutor for a more thorough investigation since
numerous facts had not been clarified.
19. On 29 December 2006 the applicant made enquiries with the
prosecutors office about the status of the investigation.
20. On 26 April 2006 the same eyewitness was interviewed again.

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21. A new expert report was requested by the prosecutor on 7 July 2006,
and on 19 July 2006 the applicant informed the authorities that she would
need additional time, until 9 September 2006, to decide whether to instruct a
counter expert on her behalf.
22. On 10 August 2006 a first written statement was taken from the
driver.
23. In statements given to the police on 11 May and 19 October 2006,
the applicant mentioned that a new expert report would not be necessary in
the case.
24. According to three reports drafted between 2 October and
29 November 2006 by the police officer in charge of the investigation, the
applicant could not be contacted, or had failed to come to the police station
to give the name of her counter expert.
25. On 23 January 2007, holding that a new expert report was not
necessary, the prosecutor decided again not to prosecute the driver since the
fault for the accident lay entirely with the applicant. The decision was
upheld by a hierarchically superior prosecutor on 21 February 2007.
26. The applicants complaint against the prosecutors decisions was
allowed by the Bucharest District Court on 8 May 2007. The court held that
the investigative authorities had failed to follow the instructions given in the
previous judgment of 4 August 2005. The judgment became final on
26 September 2007 when an appeal on points of law by the prosecutor was
dismissed by the Bucharest County Court.
27. On 9 June 2008 the Prosecutors Office attached to the Bucharest
District Court noted that the limitation period for the crime under
investigation had expired on 24 April 2007 and decided to close the case.
28. The applicant appealed against that decision before the courts. She
claimed 25,000 euros (EUR) in respect of non-pecuniary damage from the
driver and the Prosecutors Office. She considered that the prosecutor was
liable for the excessive delays in the investigation which had triggered the
expiry of the limitation period for the crime committed against her.
29. On 27 August 2008 the Bucharest District Court rejected the
applicants claim. The court held that because the limitation period for
criminal responsibility in the case had expired it could not rule on the
applicants claim for compensation. It further held that the applicant could
bring such a claim before the civil courts. The judgment became final on
15 October 2008 when an appeal by the applicant was dismissed by the
Bucharest County Court.
II. RELEVANT DOMESTIC LAW AND PRACTICE
30. The provisions of the former Romanian Code of Criminal Procedure
regarding the possibility of opening civil proceedings separately from or
jointly with criminal proceedings read as follows:

DRAGOMIR v. ROMANIA JUDGMENT

Article 15
... (2) Civil claims may be brought during criminal proceedings, but also before the
trial court, until the [date the] indictment has been read out in court.
Article 19
(1) If a victim has not joined criminal proceedings as a civil party, he or she may
initiate separate proceedings before the civil courts for damages arising from the
offence.
(2) Civil proceedings shall be stayed pending a final judgment of the criminal
courts.
(3) A victim who has joined criminal proceedings as a civil party may also initiate
separate civil proceedings if the criminal proceedings are stayed. If the criminal
proceedings are reopened the civil proceedings opened before the civil courts shall be
stayed.
(4) A victim who has initiated civil proceedings before a civil court may abandon
these proceedings and lodge an application with the investigating authorities or the
trial court if criminal proceedings have subsequently been opened ... The civil
proceedings cannot be abandoned if the civil court has delivered even a non-final
judgment.

31. The relevant provisions of the Criminal Code concerning the

statutory limitation period for the crime under investigation in the current
case were, at the relevant time, as follows:
Article 122
Criminal liability shall be statute-barred after: ...
(d) five years, where the law provides for a maximum sentence of between one and
five years imprisonment ...
These limitation periods shall start to run from the date on which the offence was
committed ...

32. The relevant provisions on civil liability for tort, as provided by the
Civil Code in force until 1 October 2011, read as follows:
Article 998
Any act committed by a person which causes damage to another shall render the
person through whose fault the damage was caused liable to make reparation for it.
Article 999
Everyone shall be liable for damage he has caused not only through his own act but
also through his failure to act or his negligence.

33. Under the provisions of Article 3 of Decree no. 167/1958, the

general time-limit for lodging a claim for compensation is three years from
the date when the damage occurred. Under Article 8, the time-limit starts to

DRAGOMIR v. ROMANIA JUDGMENT

run from the moment the person becomes aware of the damage and knows
who caused it. The situations in which the above-mentioned time-limit may
be interrupted are as follows:
Article 16
The running of the time-limit is interrupted:
(a) if the person who benefits from the running of the time-limit acknowledges the
existence of a right [to compensation];...
(b) if a court action is lodged ...;
(c) by enforcement ...

34. The Government submitted examples of case-law to show that a

civil action for damages under the general provisions on tort may be
submitted after the closure of the criminal investigation and after the expiry
of the three year limitation period. However, none of the six domestic
judgments submitted concerned a situation similar to that in the present
case, namely the lodging of a civil action for damages after the closure of
the criminal investigation due to the expiry of the statutory limitation period
for criminal responsibility and when the victim was aware of both the
damage and the person who caused it.

THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 1 OF THE CONVENTION
35. The applicant complained that as a result of the discontinuation of
the criminal proceedings and the consequent non-examination of her
civil-party claim, she had been denied effective access to a court. She relied
on Article 6 1 and Article 13 of the Convention. She also complained
about the length of the criminal proceedings she had joined as civil-party
against the driver who had caused her physical injuries.
36. The Court reiterates that it is master of the characterisation to be
given in law to the facts of the case and does not consider itself bound by
the characterisation given by an applicant. A complaint is characterised by
the facts alleged in it and not merely by the legal grounds or arguments
relied on (see Guerra and Others v. Italy [GC], 19 February 1998, 44,
Reports of Judgments and Decisions 1998-I). Therefore, having regard to
the nature and the substance of the applicants complaints in this particular
case, the Court finds that they fall to be examined primarily under
Article 6 1of the Convention, which reads as follows in so far as relevant:
In the determination of his civil rights and obligations ... everyone is entitled to a
fair ... hearing within a reasonable time ... by [a] ... tribunal ...

DRAGOMIR v. ROMANIA JUDGMENT

A. Admissibility
37. The Government submitted that the applicant had failed to exhaust
domestic remedies. More specifically, they asserted that after the
discontinuation of the criminal proceedings the applicant could have
brought a tort action for compensation in the civil courts based on the
general provisions set forth in Articles 998 and 999 of the Civil Code.
38. The applicant contested this argument, replying that such an action
had become statute-barred by the time the criminal investigation had been
discontinued.
39. The Court considers that the Governments objection is closely
related to the substance of the application and should therefore be joined to
the merits.
40. It further notes that the application is not manifestly
ill-founded within the meaning of Article 35 3 (a) of the Convention, nor
inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
41. The applicant submitted that because she had lodged her claim for
compensation with the criminal complaint against the person who had
caused her physical injuries, she legitimately expected that it would be
considered. However, owing to excessive delays and periods of inaction
imputable to the authorities, the statutory limitation period for criminal
liability had expired. Under these circumstances, her claim for
compensation could no longer be examined by any court, since the civil
limitation period had also expired.
The applicant also contended that even if she had initially lodged a tort
action in the civil courts, the proceedings would have been stayed until the
end of the criminal proceedings. Six years after the accident, when the
criminal proceedings finally ended without important elements of fact being
clarified, there was little chance of new proceedings in the civil courts
succeeding. Hence, her right of access to a court had been breached.
42. The Government contended that, where criminal proceedings were
discontinued before a decision to prosecute, the criminal courts were
prevented by law to examine any civil-party claim. After the discontinuation
of the criminal proceedings, the applicant should have brought an action in
the civil courts. The applicant could have also chosen to lodge a civil action
before the institution of the criminal proceedings, as the Court held in the
similar case of Association of the Victims of S.C. Rompetrol S.A.
and S.C. Geomin S.A. and Others v. Romania (no. 24133/03, 66,
25 June 2013). The Government lastly alleged that the delays in the criminal
investigation were due to the conduct of the applicant, who had failed to go
to the police station when asked.

DRAGOMIR v. ROMANIA JUDGMENT

43. Firstly, the Court reiterates that Article 6 1 secures to everyone the
right to have any claim relating to their civil rights and obligations brought
before a court or tribunal (see Prince Hans-Adam II of Lichtenstein
v. Germany [GC], no. 42527/98, 43, ECHR 2001-VIII). This right of
access to the courts secured by Article 6 1 of the Convention is not
absolute, but may be subject to limitations; these are permitted by
implication since the right of access by its very nature calls for regulation by
the State. In this respect, the Contracting States enjoy a certain margin of
appreciation, although the final decision as to the observance of the
Conventions requirements rests with the Court. It must be satisfied that the
limitations applied do not restrict or reduce the access left to the individual
in such a way or to such an extent that the very essence of the right is
impaired (see Dinchev v. Bulgaria, no. 23057/03, 42, 22 January 2009).
44. The Court notes that it has already examined on several occasions
complaints similar to that raised in the present case and concluded that there
had been a violation of Article 6 where the discontinuation of criminal
proceedings and failure to examine the applicants civil-party claim were
imputable to the authorities, more specifically due to excessive delays in the
proceedings which triggered the expiry of the limitation period for the crime
in question (see Anagnostopoulos v. Greece, no. 54589/00, 31-32,
3 April 2003; Atanasova v. Bulgaria, no. 72001/01, 45-47,
2 October 2008; and Rokas v. Greece, no. 55081/09, 24,
22 September 2015).
45. Turning to the present case, the Court notes that on 19 June 2002 the
applicant lodged a civil-party claim in the context of the criminal
proceedings opened by the authorities after the car accident. She availed
herself of the possibility offered by law to do so and she therefore
legitimately expected that her claim would be decided. However, her civil
claim remained pending before the authorities for six years before the
prosecutor found that the limitation period for the crime under investigation
had expired and decided to close the case.
46. The Government argued that significant delays in the investigation
had been caused by the applicants conduct. It appears from the case file
that the applicant failed to reply to invitations sent by the investigators for
various periods totalling less than one year.
47. The Court notes that the case was not at all complex, and that the
entire investigation comprised of taking four statements and ordering an
expert report. The Court also observes that the first expert examination of
the scene took place two years after the accident had occurred. Furthermore,
a first written statement from the driver was taken only on
10 August 2006, more than four years after the accident. In the meantime,
the police officers in charge of the investigation constantly insisted on
inviting the applicant to the police station and registering her absence. On
this point the Court observes that, for example, although the applicant

DRAGOMIR v. ROMANIA JUDGMENT

mentioned in writing her opinion that a new expert report was not necessary
in the case (see paragraph 23 above), the investigators continued to invite
her to the police station in order to instruct a counter expert for two and a
half months and, during that time, drafted three reports to register her
absence. In this context, the Court cannot be persuaded that the delays
registered by the investigators as being due to the applicants absence could
be considered as being exclusively caused by her conduct.
48. In view of the above, the Court concludes that the excessive and
unjustified delays in the criminal investigation were due to the authorities
conduct and resulted in preventing the examination of the applicants
civil-party claim within the criminal proceedings.
49. The Government further argued that the applicant had failed to bring
a separate tort action before the civil courts. As in Anagnostopoulos, the
Court considers that where the domestic legal order provides litigants with
an avenue of redress, such as a civil claim in the context of criminal
proceedings, the State is under an obligation to ensure that they enjoy the
fundamental guarantees laid down in Article 6 1. In the Courts view, the
applicant could not be expected to wait for the extinction of criminal
liability of the alleged perpetrator of the offence to which she was victim,
many years after making her original civil-party claim and after the
impugned events, to bring a fresh action before the civil courts
(see Anagnostopoulos, 32, and Dinchev, 50, both cited above). In the
circumstances of the current case and notwithstanding the consideration of
principle made by the Bucharest District Court (see paragraph 29 above),
such an action lodged more than six years after the accident would have
been unlikely to succeed since it would have been outside the three-year
statutory limitation period. The Government failed to prove otherwise
(see paragraph 34 above).
50. This conclusion is not altered by the fact that the applicant could
have opted for a separate civil action from the outset. Her preference for
claiming damages in the context of criminal proceedings was not unjustified
in her particular case. It is widely accepted that the circumstances of a car
accident are clarified by the police in the context of a criminal investigation.
Once she opted for that remedy, she was entitled to have her claim
considered and was not required to have tried, for the purposes of Article 35
1 of the Convention, the other avenue of redress available under national
law (see Dinchev, cited above, 51). The Court notes in addition that, even
if civil proceedings had initially been instituted, they would have been
stayed until the conclusion of the criminal investigation (see paragraph 30
above) which in the present case was six years after the accident and, as
noted also by the domestic courts, failed to clarify important elements of
fact. Accordingly, the Court does not consider that the applicant acted
inappropriately when choosing to pursue the case under the Code of
Criminal Procedure.

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51. Lastly, the Court considers that the current case cannot be compared
to the case cited by the Government, Association of the Victims of S.C.
Rompetrol S.A. and S.C. Geomin S.A. and Others, where it was held that the
applicant lodged his civil-party claim within criminal proceedings at a time
when the limitation period for bringing a separate civil action had already
expired (cited above, 66).
52. The foregoing considerations are sufficient to enable the Court to
conclude that the applicant did not enjoy effective access to a court for the
examination of her civil-party claim.
It therefore rejects the Governments objection and holds that there has
been a violation of Article 6 1 of the Convention.
53. Having regard to the circumstances of the current case and in view
of the findings in respect of the complaint concerning the right of access to
court, the Court considers that it has already examined the main issues
arising from the complaint concerning the excessive delays in the criminal
investigation. It is not therefore necessary to examine whether in this case
there has also been a violation of Article 6 1 of the Convention due to the
length of the criminal proceedings (see Korkolis v. Greece, no. 63300/09,
26, 15 January 2015).
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
54. 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
55. The applicant claimed 20,000 euros (EUR) in respect of pecuniary
and non-pecuniary damage. She also requested a monthly allowance of
EUR 500, claiming that the accident had caused her injuries which had left
her with lifelong physical disabilities. The applicant submitted two medical
certificates in support of her claims.
56. The Government contested these claims arguing that they were
excessive and unsubstantiated.
57. The Court reiterates that it found a violation of Article 6 1 of the
Convention in the present case because the applicant did not enjoy effective
access to a court for the examination of her civil-party claim. The Court
does not therefore discern any causal link between the violation found and
the pecuniary damage alleged and rejects this claim.
58. On the other hand, having regard to all the circumstances of the
present case, the Court accepts that the applicant must have suffered

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DRAGOMIR v. ROMANIA JUDGMENT

non-pecuniary damage which cannot be compensated solely by the finding

of a violation. Making its assessment on an equitable basis, the Court
awards the applicant EUR 3,600 in respect of non-pecuniary damage, plus
any tax that may be chargeable thereon.
B. Costs and expenses
59. The applicant also claimed EUR 7,001.95 for the costs and expenses
incurred during the domestic proceedings as well as before the Court. She
submitted proof of payment of the expert report conducted in 2004 for the
purposes of the criminal investigation.
60. The Government requested that the Court reject these claims as
unsubstantiated.
61. According to the Courts 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 (see, for example, Iatridis v. Greece (just satisfaction) [GC],
no. 31107/96, 54, ECHR 2000-XI). In the present case, regard being had
to the documents in its possession and the above criteria, the Court rejects
the claim for costs and expenses.
C. Default interest
62. 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. Joins to the merits the Governments objection concerning the
non-exhaustion of domestic remedies and dismisses it;
2. Declares the application admissible;
3. Holds that there has been a violation of Article 6 1 of the Convention
concerning the breach of the applicants right of access to a court;
4. Holds that there is no need to examine the complaint under Article 6 1
of the Convention concerning the excessive length of the proceedings;

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11

5. Holds
(a) that the respondent State is to pay the applicant, within three
months, EUR 3,600 (three thousand six hundred euros), to be converted
into the currency of the respondent State at the rate applicable at the date
of settlement, plus any tax that may be chargeable, in respect of nonpecuniary damage;
(b) that from the expiry of the above-mentioned three months until
settlement, simple interest shall be payable on the above amount at a rate
equal to the marginal lending rate of the European Central Bank during
the default period plus three percentage points;
6. Dismisses the remainder of the applicants claim for just satisfaction.
Done in English, and notified in writing on 14 June 2016, pursuant to
Rule 77 2 and 3 of the Rules of Court.

Fato Arac
Deputy Registrar

Krzysztof Wojtyczek
President