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URL: http://www.bailii.org/eu/cases/ECHR/2018/462.html
Cite as: ECLI:CE:ECHR:2018:0605JUD004389913, [2018] ECHR 462, CE:ECHR:2018:0605JUD004389913

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FOURTH SECTION

CASE OF IORDAN v. ROMANIA

(Applications nos. 43899/13 and 43903/13)

JUDGMENT

STRASBOURG

5 June 2018

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

In the case of Iordan v. Romania,

The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:

Vincent A. De Gaetano, President,
Georges Ravarani,
Marko Bošnjak, judges,
and Andrea Tamietti, Deputy Section Registrar,

Having deliberated in private on 15 May 2018,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in two applications (nos. 43899/13 and 43903/13) 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, Mr Florea Iordan ("the first applicant" and Mrs Veronica Iordan ("the second applicant"), on 28 June 2013.

2. The applicants were represented by Mr I. Matei, a lawyer practising in Bucharest. The Romanian Government ("the Government") were represented by their Agent, Ms C. Brumar, from the Ministry of Foreign Affairs.

3. On 14 February 2014 the complaints concerning the effectiveness of the criminal investigation, the length of criminal proceedings and the lack of an effective domestic remedy were communicated to the Government and the remaining parts of the applications were declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. As Iulia Antoanella Motoc, the judge elected in respect of Romania, withdrew from sitting in the case (Rule 28 § 3 of the Rules of Court), the President decided to appoint Krzysztof Wojtyczek as an ad hoc judge (Rule 29 § 2 of the Rules of Court).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. The applicants were born in 1939 and 1944 respectively and live in Dumbrăvița, Timiș County.

5. The facts of the case, as submitted by the applicants, refer to the same context and domestic criminal proceedings as those described in Association "21 December 1989" and Others v. Romania (nos. 33810/07 and 18817/08, §§ 12-41, 24 May 2011) and Şandru and Others v. Romania (no. 22465/03, §§ 7-47, 8 December 2009).

6. Between 17 and 28 December 1989 many people, including the applicants' son, participated in anti-communism demonstrations in Timișoara, Bucharest and other cities in Romania.

7. The applicants' son was killed by gunfire on 23 December 1989 in Timișoara.

8. In 1990 the military prosecutor's office opened several investigations into the December 1989 armed crackdown on the anti-communism demonstrations. A main criminal investigation concerning the use of violence against civilians in Bucharest and other cities was also registered with the highest prosecutor's office - the military prosecutors section − under no. 97/P/1990 (current number 11/P/2014).

9. In cases concerning the events in Timișoara, a separate investigation was carried out under file no. 11/P/1996, culminating in the referral to court and subsequent conviction of senior military officers by a decision of the High Court of Cassation and Justice of 3 April 2007, which became final on 15 October 2008. As is apparent from the documents submitted by the parties, the death of the applicants' son did not form part of this investigation, but in the court proceedings the first applicant nonetheless lodged a civil claim regarding his son's death during the December 1989 events. The court dismissed it on the grounds that he had failed to submit documents substantiating this claim.

10. As acknowledged by the Government, both applicants are parties in the main criminal investigation file. On 26 June 2013 they brought civil claims before the prosecutor requesting the right to participate, being civil parties in this file. The applicants had first made statements and raised civil claims in criminal investigation files other than file no. 97/P/1990 (current number 11/P/2014) on 11 January 1990 and 1 March 2000. The parties did not inform the Court whether these files had been joined to the main criminal investigation (see paragraph 8 above).

11. The most important steps taken by the prosecutors in the main criminal investigation are summarised in Association "21 December 1989" and Others (cited above, §§ 12-41) and Anamaria-�Loredana Orășanu and Others v. Romania ([Committee] nos. 43629/13 and 74 others, §§ 10-�11, 7 November 2017). Further developments are as follows.

12. On 14 October 2015 the prosecutor's office closed the main investigation, finding that the offences of homicide and instigation to homicide of which the applicants' son had been a victim had become statute-�barred.

13. Although the parties have not communicated any information regarding the lodging of an appeal against this decision, it is apparent from the prosecutor's office website that it was subsequently quashed and to date the main criminal investigation is still ongoing (see Anamaria-�Loredana Orășanu and Others, cited above, § 11).

II. RELEVANT DOMESTIC LAW

14. The relevant domestic laws are mentioned in Association "21 December 1989" and Others (cited above, §§ 95-100); Mocanu and Others v. Romania ([GC] nos. 10865/09 and 2 others, §§ 193-�196, ECHR 2014 (extracts)); and Anamaria-�Loredana Orășanu and Others (cited above, §§ 12-�14).

THE LAW

I. THE JOINDER OF THE CASES

15. The Court notes that the applications concern the same factual circumstances and raise similar legal issues. Consequently, it considers it appropriate to order their joinder, in accordance with Rule 42 § 1 of the Rules of Court.

II. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

16. The applicants complained that the criminal investigation carried out by the authorities into the events of December 1989 could not be regarded as effective and capable of leading to the identification and punishment of the persons responsible for the death of their son.

They invoked Article 2 of the Convention, which, in so far as relevant, reads as follows:

"1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally ..."

A. Admissibility

17. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

18. The Government referred to the steps taken so far by the domestic authorities during the main criminal investigation in order to establish the facts and to identify those responsible, and concluded that the military prosecutors carrying it out had been independent in arriving at their decisions (see paragraph 11 above).

19. The Court reiterates that an investigation must be effective in the sense that it is capable of leading to a determination of the circumstances of fact and to the identification and punishment of those responsible. This is not an obligation of result, but of means (see Kelly and Others v. the United Kingdom, no. 30054/96, § 96, 4 May 2001, and Anguelova v. Bulgaria, no. 38361/97, § 139, ECHR 2002-IV). The State's obligation under Article 2 of the Convention will not be satisfied if the protection afforded by domestic law exists only in theory: above all, it must also operate effectively in practice and that requires a prompt examination of the case without unnecessary delays. Any deficiency in the investigation which undermines its ability to establish the cause of death or the person responsible will risk falling foul of this standard (see Šilih v. Slovenia [GC], no. 71463/01, § 195, 9 April 2009; Varnava and Others v. Turkey [GC], nos. 16064/90 and 8 others, § 191, ECHR 2009; and Association "21 December 1989" and Others v. Romania (nos. 33810/07 and 18817/08, § 134, 24 May 2011).

20. In the present case, taking into account the period after 20 June 1994, when the Convention entered into force in respect of Romania, and irrespective of the fact that the investigation was carried out by military prosecutors (see Ecaterina Mirea and Others v. Romania, nos. 43626/13 and 69 others, §§ 36-37, 12 April 2016), the Court notes that, even if the main criminal investigation under file no. 97/P/1990 (current number 11/P/2014) was opened by the domestic authorities of their own motion, its excessive length and the lack of activity − as well as the failure to involve the next of kin of the victims and to inform the public - are characteristic of this investigation, which is still ongoing after more than 28 years (see Association "21 December 1989" and Others, cited above, § 136-145). In addition, the investigation has not so far proved capable of leading to the establishment of the circumstances of fact or the identification of those responsible for the death of the applicants' son.

21. The foregoing considerations are sufficient to enable the Court to conclude that the criminal investigation opened into the events of December 1989 did not correspond to the principles enshrined in the Court's jurisprudence concerning the effectiveness of an investigation.

There has accordingly been a violation of Article 2 of the Convention under its procedural limb.

III. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE CONVENTION

22. The applicants complained of the length of the criminal proceedings and the absence of an effective domestic remedy for the determination of their claims. They relied on Articles 6 § 1 and 13 of the Convention.

23. In the light of the finding relating to Article 2 (see paragraph 21 above), the Court considers that it is not necessary to examine the admissibility and merits of the complaints under Articles 6 § 1 and/or 13 of the Convention (see, among other authorities, Association "21 December 1989" and Others, cited above, § 181).

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

24. 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

25. Each applicant claimed 100,000 euros (EUR) in respect of pecuniary and non-pecuniary damage.

26. The Government challenged these claims as excessive.

27. The Court considers on the one hand that the applicants have failed to demonstrate the existence of a causal link between the violation found and the pecuniary damage alleged; it therefore rejects those claims. On the other hand, the Court considers that the violation of the procedural head of Article 2 has caused the applicants substantial non-pecuniary damage, such as distress and frustration. Ruling on an equitable basis, it awards them jointly the amount of EUR 15,000, under this head, plus any tax that may be chargeable.

B. Costs and expenses

28. The applicants did not submit a claim for costs and expenses. The Court is therefore not called to make an award in this respect.

C. Default interest

29. 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. Decides to join the applications;

2. Declares the applications in respect of the complaint under Article 2 of the Convention admissible;

3. Holds that there has been a violation of Article 2 of the Convention under its procedural limb;

4. Holds that there is no need to examine the admissibility and the merits of the complaints under Articles 6 § 1 and 13 of the Convention;

5. Holds

(a) that the respondent State is to pay the applicants jointly, within three months, EUR 15,000 (fifteen thousand euros), plus any tax that may be chargeable, in respect of non-�pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(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 5 June 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Andrea TamiettiVincent A. De Gaetano
Deputy RegistrarPresident