Last Updated on June 17, 2019 by LawEuro
FOURTH SECTION
DECISION
Applications nos. 30357/15 and 30411/15
Alexandru-Petrișor MATEI against Romania
and Daniela BADEA against Romania
The European Court of Human Rights (Fourth Section), sitting on 9 October 2018 as a Committee composed of:
Georges Ravarani, President,
Marko Bošnjak,
Péter Paczolay, judges,
and Andrea Tamietti, Deputy Section Registrar,
Having regard to the above applications lodged on 15 June 2015,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
1. The applicant in the first case, Mr Alexandru-Petrișor Matei, is a Romanian national, who was born in 1977 and lives in Bucharest. The applicant in the second case, Ms Daniela Badea, is a Romanian national, who was born in 1966 and lives in Rome, Italy. They were represented before the Court by Mr I. Matei, a lawyer practising in Bucharest.
2. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, from the Ministry of Foreign Affairs.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows. Both applicants were ill-treated on the night of 21/22 December 1989 in Bucharest, being beaten by militia forces during the events which led to the overthrow of the communist regime, as described in the case Association “21 December 1989” and Others v. Romania (nos. 33810/07 and 18817/08, §§ 12-41, 24 May 2011).
4. In 1990 the military prosecutor’s office opened investigations, of its own motion,into the illegal detention, ill-treatment and injury suffered by the participants during the events of December 1989, the more precise offences being mentioned below. The main criminal investigation was recorded in file no. 97/P/1990 (currently no. 11/P/2014).
5. As regards the first applicant (Mr Alexandru-Petrișor Matei), the parties have not submitted any documents indicating that his case had been part of the main criminal investigation or of any other separate investigation.
6. As regards the second applicant (Ms Daniela Badea), she gave a statement as a witness in file no. 97/P/1990 (currently no. 11/P/2014) on 12 July 1990. At the same time, another investigation registered under no. 76/P/1990 concerning the offences of illegal deprivation of liberty, illegal arrest and abusive investigation, committed against a large number of persons, including the second applicant, culminated in the committal for trial of senior military and public officials and their subsequent conviction by a decision of the Supreme Court of Justice of 10 May 1991, which became final on 14 November 1991. Further, the military prosecutor’s office decided on 27 August 1993 not to open a separateinvestigation under file no. 566/SP/1993 into the offence of improper conduct, on the grounds that this offence fell under a subsequently enacted amnesty law.
7. In so far as the main criminal investigation is concerned, none of the two applicants have lodged complaints as an injured or civil party under file no. 97/P/1990 (currently no. 11/P/2014).
8. No decision was issued by the military prosecutor’s office in respect of the applicants’ particular situation in the main criminal investigation.
9. According to the information available to the Court, the main criminal investigation into the events of December 1989 is still ongoing (see Bănuțoiu and Ștefoglu v. Romania [Committee], nos. 64752/13 and 54607/14, § 12, 3 July 2018).
B. Relevant domestic law
10. The relevant provisions of the former Code of Criminal Procedure (which were in force until 1 February 2014) regarding participants in criminal proceedings read as follows:
Article 15
“An injured person may join the proceedings as a civil party against the accused person or the defendant and against the party that bears civil liability.
Joining the proceedings as a civil party may be undertaken either during the criminal investigation or in court, before the charges are read out …”
Article 24
“1. A person who has suffered a physical injury or psychological or material damage as a result of a criminal act is referred to as the injured party, if he or she participates in the criminal proceedings.
”2. An injured person who undertakes a civil action during the criminal proceedings is referred to as the civil party. …”
Article 78
“Any person who has knowledge of a fact or circumstance that might be useful in establishing the truth in the criminal proceedings may be heard as a witness.”
Article 82
“The injured person may be heard as a witness, if he or she does not join the proceedings as a civil party or he or she does not participate in those proceedings as an injured party.”
The new Code of Criminal Procedure (now in force) contains similar provisions:
Article 20
“1. Joining the proceedings as a civil party may be undertaken until the beginning of the court’s examination [până la începerea cercetării judecătorești] …”
Article 29
“The participants in criminal proceedings are the following: the judicial authorities, counsel, the parties, the main procedural subjects, as well as other procedural subjects.”
Article 32
“1. The parties are procedural subjects who undertake a judicial action or against whom a judicial action is undertaken.
2. The parties to criminal proceedings are the accused person, the civil party and the party that bears civil liability.”
Article 33
“1. The main procedural subjects are the suspect and the injured person.
2. The main procedural subjects have the same rights and obligations as the parties, save for those granted by law exclusively to them.”
Article 34
“There are other procedural subjects beside those provided by Article 33: witnesses, experts, the interpreter …”
Article 79
“A person who has suffered a physical injury or material or psychological damage is referred to as the injured person.”
Article 81
“2. A person who has suffered a physical injury or material or psychological damage as a result of a criminal act for which a criminal trial is automatically set in motion, and who does not wish to participate in the criminal proceedings, has to inform the judicial authorities of this fact; [they] shall hear that person as a witness, if they consider it necessary.”
Article 84
“1. An injured person who undertakes a civil action during the criminal proceedings is a party to these proceedings and is referred to as the civil party.”
COMPLAINTS
11. Relying on Article 3, Article 6 § 1 and Article 13 of the Convention, the applicants complained about the ineffectiveness and length of the criminal investigation carried out in respect of the events of December 1989 and about the absence of an effective domestic remedy.
THE LAW
A. Joinder of the cases
12. Having regard to the similar subject matter of the applications, the Court finds it appropriate to order their joinder (Rule 42 § 1 of the Rules of Court).
B. Complaint under Article 3 of the Convention
13. The applicants complained of the lack of an effective investigation carried out under file no. 97/P/1990 (current no. 11/P/2014) capable of leading to the identification and punishment of those responsible for their ill‑treatment during the demonstrations of December 1989. They relied on Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
14. The Government argued, among other submissions, that the applicants lacked victim status in relation to the main criminal investigation carried out under file no. 97/P/1990 (current no. 11/P/2014), as they had not expressed any interest in the domestic criminal proceedings, not participating in them as an injured person or a civil party.
15. The Court reiterates that, in order to be able to lodge an application under Article 34, a person must be able to claim to be the victim of a violation of the rights set forth in the Convention. In order to make that claim, a person must be directly affected by the impugned measure: the Convention does not envisage the bringing of an actio popularis for the interpretation of the rights it contains (see Tănase v. Moldova [GC], no. 7/08, § 104, ECHR 2010, andCentre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 101, ECHR 2014, with further references).
16. In the present case, the Court has regard to the fact that the applicants complained of the lack of an effective criminal investigation carried out under file no. 97/P/1990 (current no. 11/P/2014). The Court notes that the applicants’ cases were not part of the main criminal investigation (see paragraph 8 above). The Court also notes that the applicants did not lodge a criminal complaint with the domestic authorities, nor did they raise any civil claims (see paragraph 7 above, and contrast Dobre and Others v. Romania, no. 34160/09, §§ 19-20 and 54-57, 17 March 2015). In that connection, the Court takes the view that the applicants are not entitled to claim that there were shortcomings in criminal proceedings to which they were not parties. Therefore, the applicants cannot claim to be victims of a violation of the procedural limb of Article 3 of the Convention.
17. It follows that the complaint is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 1 (a) and must be rejected pursuant to Article 35 § 4 of the Convention.
C. Complaint under Article 6 § 1 of the Convention
18. The applicants complained that the length of the criminal proceedings was incompatible with the “reasonable time” requirement laid down in Article 6 § 1 of the Convention, which reads as follows:
“In the determination of his civil rights and obligations … everyone is entitled to a … hearing within a reasonable time by [a] … tribunal …”
19. The Government objected that the applicants lacked victim status, as they had not joined the criminal investigation as an injured person or a civil party.
20. The applicants disagreed with the Government’s objection.
21. The Court reiterates that the Convention does not confer any right to “private revenge” or to an actio popularis. Thus, the right to have third parties prosecuted or sentenced for a criminal offence cannot be asserted independently; it must be indissociable from the victim’s exercise of a right to bring civil proceedings in domestic law (see Perez v. France [GC], no. 47287/99, § 70, ECHR 2004‑I). Therefore, in principle the victim of an offence may only invoke his or her rights under Article 6 in relation to criminal proceedings against an offender if he or she has joined those proceedings as a civil party in order to obtain damages or to otherwise protect his or her civil rights (contrast Bosnigeanu and Others v. Romania, nos. 56861/08 and 33 others, § 19, 4November 2014, andAlexandrescu and Others v. Romania, nos. 56842/08 and 7 others, § 22, 24 November 2015).
22. The Court furthermore notes that, while the Romanian Code of Criminal Procedure allows civil parties to request compensation during criminal proceedings (see paragraph 10 above), the applicants were not part of the main criminal investigation, there being no information in the case file to suggest that the applicants lodged a request to participate in it or that they raised any civil claims or that their cases were examined in the main criminal investigation (see paragraphs 7 and 8 above). Therefore, Article 6 § 1 of the Convention is not applicable to the present case (see, mutatis mutandis, Pop Blaga v. Romania(No. 1) (dec.), no. 37379/02, §§ 152-155, 08 September 2009; Rosoga v. Romania (dec.), no. 39681/06, § 22, 05 January 2010; and Roșca Stănescu v. Romania (dec.), no. 49357/08, § 33, 28 January 2014).
23. Accordingly, this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must therefore be rejected, in accordance with Article 35 § 4.
D. Complaint under Article 13 of the Convention
24. The applicants complained of the absence of a domestic remedy through which to enable their claims under Articles 3 and 6 § 1 of the Convention to be determined in accordance with Article 13 of the Convention, which states as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
25. The Court notes that Article 13 has been consistently interpreted by the Court as requiring a remedy only in respect of grievances which can be regarded as “arguable” in terms of the Convention (see Athanassoglou and Others v. Switzerland [GC], no. 27644/95, § 58, ECHR 2000‑IV).
26. In the light of the finding relating to Articles 3 and 6 § 1 of the Convention (see paragraphs 17 and 23 above), this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must therefore be rejected, in accordance with Article 35 § 4.
For these reasons, the Court, unanimously,
Decides to join the applications;
Declares the applications inadmissible.
Done in English and notified in writing on 8 November 2018.
Andrea Tamietti Georges Ravarani
Deputy Registrar President
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