European Court of Human Rights

 

 

FOURTH SECTION

CASE OF MOROŞANU AND OTHERS v. ROMANIA

(Applications nos. 84271/17 and 4 others - see appended list)

 

 

 

 

JUDGMENT

STRASBOURG

16 March 2021

 

 

 

 

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

In the case of Moroşanu and Others v. Romania,

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

          Gabriele Kucsko-Stadlmayer, President,
          Iulia Antoanella Motoc,
          Pere Pastor Vilanova, judges,
and Ilse Freiwirth, Deputy Section Registrar,

Having regard to:

the five applications (listed in the appended table) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by five Romanian nationals (“the applicants”), on the various dates indicated in the appended table;

the decision to give notice to the Romanian Government (“the Government”) of the complaints concerning the lack of an effective investigation within a reasonable time into the events of December 1989 in Bucharest and Reșița and to declare inadmissible the remainder of the applications;

the parties’ observations;

Having deliberated in private on 16 February 2021,

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

INTRODUCTION

1.  The present cases concern the criminal investigations opened by the military prosecutor’s office into the events of the Romanian Revolution in December 1989, in the course of which the applicants were injured or their close relatives died. Relying mainly on Article 2 of the Convention, the applicants complained that the domestic authorities had not carried out an effective investigation within a reasonable time into these events.

THE FACTS

2.  The applicants’ details are set out in the appended table.

3.  The Romanian Government (“the Government”) were represented by their Agent, most recently Ms O.F. Ezer of the Ministry of Foreign Affairs.

4.  The facts, as submitted by the parties, are similar to those in Association “21 December 1989” and Others v. Romania, nos. 33810/07 and 18817/08, §§ 12-41, 24 May 2011.

5.  The applicants or their close relatives were injured or killed by gunshot while participating in demonstrations in Bucharest and Reșița during the events of December 1989 which led to the fall of the communist regime. The applicant in application no. 84271/17 (Mr Moroșanu) suffered injuries that necessitated medical care lasting one year and three months and which left him with a permanent infirmity. The applicant in application no. 2666/18 (Mr Iordan) suffered injuries that necessitated between twenty-three and twenty-five days of medical care. The other applicants’ relatives were killed by gunshot during the same events.

6.  In 1990 the military prosecutor’s office attached to the High Court of Cassation and Justice opened, of its own motion, investigations into the illegal detention of and ill-treatment and injury suffered by the applicants and other participants in the events of December 1989. The main criminal investigation was recorded under file no. 97/P/1990 (currently no. 11/P/2014).

7.  Between 1991 and 2006, the prosecutor decided, in the other sets of proceedings concerning the applicants or their relatives, either not to open an investigation or to discontinue the proceedings. Their cases were, however, examined in the main criminal investigation, and the applicants brought civil claims.

8.  The relevant procedural steps taken in the main criminal investigation were described in Association “21 December 1989” and Others (cited above, §§ 12-41) and Sidea and Others v. Romania ([Committee], no. 889/15, §§ 8-11, 5 June 2018).

9.  On 14 October 2015 the military prosecutor’s office closed the main criminal investigation, finding that some of the complaints were statute‑barred, some were subject to an amnesty, and some were ill-founded. It also found that some of the occurrences could not be classified as offences and some were res judicatae (see Anamaria-Loredana Orășanu and Others v. Romania [Committee], no. 43629/13, § 11, 7 November 2017).

10.  The decision of 14 October 2015 (see paragraph 9 above) was subsequently annulled by a decision of 5 April 2016 of the Prosecutor General, which was confirmed by the High Court of Cassation and Justice on 13 June 2016. On 1 November 2016 the military prosecutor ordered the opening of a criminal investigation in rem for the offence of crimes against humanity in respect of the same factual circumstances.

11.  On 5 April 2019 the military prosecutor’s office sent to trial the cases of several individuals (namely, a former Romanian president, a former Romanian prime minister and a former commander of the Romanian air force) for crimes against humanity, and discontinued the investigation with regard to other individuals for various reasons preventing the continuation of criminal proceedings (namely, some of the charges were res judicatae, some of the suspects had died or some of the facts which had been investigated could not be classified as criminal offences). The proceedings are currently pending before the Preliminary Chamber of the High Court of Cassation and Justice.

RELEVANT LEGAL FRAMEWORK

12.  The legal provisions relevant to the criminal proceedings instituted in connection with the events of December 1989 are set out in Association “21 December 1989” and Others, cited above, §§ 95-100.

THE LAW

I.       JOINDER OF THE APPLICATIONS

13.  The Court notes that the present cases 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 the Court.

II.    ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

14.  The applicants complained that the domestic authorities had not carried out an effective investigation within a reasonable time into the events of December 1989 in Bucharest and Reșița, during which they had been injured or their close relatives had been killed by gunfire. They relied on Article 2 of the Convention.

15.  The Government alleged that while it was true that the applicant in application no. 2666/18 (Mr Iordan) had been injured by gunshot, his injuries had not been life threatening, moreover, they concluded from the relatively few days of medical care he had required that his complaints should be analysed under Article 3 of the Convention. The Court, which is master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 114 and 126, 20 March 2018), considering the massive use of firearms in a crackdown on civilian demonstrators, will examine the complaints from the standpoint of Article 2 of the Convention (see, mutatis mutandis, Şandru and Others v. Romania, no. 22465/03, §§ 51-54, 8 December 2009). The relevant part of that provision reads as follows:

“Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally ...”

A.    Admissibility

16.  The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

B.     Merits

17.  The Government provided information concerning the steps taken recently by the national authorities in order to complete the criminal investigation into the events of December 1989 and referred to the arguments they had previously made in Association “21 December 1989” and Others (cited above) and Alecu and Others v. Romania (nos. 56838/08 and 80 others, 27 January 2015).

18.  The Court reiterates that in order to be effective an investigation must be capable of leading to a determination of the facts 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; Association “21 December 1989” and Others, cited above, § 134; and Mocanu and Others v. Romania [GC], nos. 10865/09 and 2 others, § 322, ECHR 2014 (extracts)).

19.  In the present case, the Court notes that shortly after the events of December 1989 a criminal investigation was opened into the applicants’ injuries and/or the death of their close relatives from gunshot.

20.  Bearing in mind its jurisdiction ratione temporis and regardless of the fact that the investigation was carried out by military prosecutors (see Elena Apostol and Others v. Romania, nos. 24093/14 and 16 others, § 34, 23 February 2016), the Court notes that the investigation in the present case was opened more than thirty years ago and is still ongoing twenty-six years after Romania ratified the Convention on 20 June 1994.

21.  In the light of the principles deriving from Article 2 regarding an effective investigation (see Mocanu and Others, cited above, §§ 314-26), the Court considers that the criminal investigation in the present case does not meet the required standards, in particular since it has not been conducted with reasonable expedition, the applicants have not been involved in the proceedings, and the public has not been kept informed about its progress. Having identified the same shortcomings in this investigation as in Association “21 December 1989” and Others (cited above, §§ 133‑45) and Alecu and Others (cited above, § 39), the Court therefore sees no reason to depart from its previous conclusions on the matter.

22.  The foregoing considerations are sufficient to enable the Court to conclude that the applicants were deprived of an effective investigation into their cases.

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

III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

24.  The applicants complained that the criminal proceedings concerning the events of December 1989 had been excessively lengthy. They relied in that connection on Article 6 § 1 of the Convention.

25.  In the light of the finding relating to Article 2 of the Convention (see paragraph 23 above), the Court considers that it is not necessary to examine the admissibility and merits of the complaints under Article 6 § 1 (see, among other authorities, Association “21 December 1989” and Others, cited above, § 181, and Alecu and Others, cited above, § 45).

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

26.  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

27.  The applicants claimed the amounts set out in the appendix in respect of pecuniary and non-pecuniary damage.

28.  The Government submitted that the claims were excessive.

29.  The Court considers that the pecuniary damage alleged by the applicant in application no. 28919/18 is completely unsubstantiated; it therefore dismisses this claim. However, the Court considers that the violation of Article 2 of the Convention under its procedural limb has caused the applicants substantial non-pecuniary damage, such as distress and frustration. Ruling on an equitable basis, it awards them the amounts set out in the appendix, plus any tax that may be chargeable.

B.     Costs and expenses

30.  Some of the applicants also claimed amounts in respect of costs and expenses for the lawyers’ fees incurred before the Court, as indicated in the appendix.

31.  The Government contested the amounts as unsubstantiated.

32.  Regard being had to the documents in its possession and to its case‑law, the Court considers it reasonable to award each of the applicants who submitted such a claim the amounts set out in the appendix, covering lawyers’ fees for the proceedings before the Court.

33.  The applicant in application no. 2666/18 did not submit a claim in respect of costs and expenses. The Court is therefore not called upon to make an award in this respect.

C.    Default interest

34.  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 complaint concerning 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 merits of the complaint under Article 6 § 1 of the Convention;

5.      Holds

(a)   that the respondent State is to pay the applicants, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) the amounts set out in the appendix, plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) the amounts set out in the appendix, plus any tax that may be chargeable to the applicants, in respect of costs and expenses;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts 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 claims for just satisfaction.

Done in English, and notified in writing on 16 March 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

    Ilse Freiwirth                                                   Gabriele Kucsko-Stadlmayer
Deputy Registrar                                                                President

 

 

APPENDIX

List of cases: