Last Updated on June 17, 2019 by LawEuro
FOURTH SECTION
DECISION
Application no. 30474/15
Cristian ADAM
against Romania
The European Court of Human Rights (Fourth Section), sitting on 25 September 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 application lodged on 15 June 2015,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Cristian Adam, is a Romanian national, who was born in 1968 and lives in Bucharest. He was 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.
4. The applicant participated in the anti-communist demonstrations in December 1989 in Bucharest. In 1990 the military prosecutor’s office opened a criminal investigation in respect of the December 1989 armed crackdown on the events in Bucharest. According to the documents submitted to the Court by the parties, the applicant was interviewed at the military prosecutor’s office as a witness in connection with the use of violence against civilian demonstrators. He did not lodge a criminal complaint, nor did he join the criminal proceedings as an injured or civil party. However, he cited psychological suffering that he had experienced following the events of December 1989. In that connection, he was evaluated in March 2015 by a psychologist from the ICAR Foundation, a non‑governmental organisation that focuses on providing medical, psychological, social and legal support to victims of totalitarian regimes on political grounds, using the “the Hospital Anxiety and Depression Scale” (a scale developed as a means of detecting states of depression and anxiety in the setting of a hospital outpatient clinic). In the ICAR Foundation report regarding the applicant it was concluded that he had presented scores which could suggest a subjacent pathology related to trauma following his involvement in the above‑mentioned events. The applicant also appended several medical certificates, indicating a diagnosis of reactive depression. No decision was adopted by the military prosecutor’s office in respect of the applicant’s particular situation.
5. According to the information available to the Court, the main criminal investigation into the events of December 1989 is still ongoing (see BănuțoiuandȘtefogluv. Romania [Committee], nos. 64752/13 and 54607/14, § 12, 3 July 2018).
B. Relevant domestic law
6. 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.”
7. 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 începereacercetăriijudecătorești] …”
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 for 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
8. Relying on Articles 3, 6 § 1 and 13 of the Convention, the applicant 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. Complaint under Article 3 of the Convention
9. The applicant complained of the lack of an effective investigation capable of leading to the identification and punishment of those responsible for the violent crackdown on the demonstrations of December 1989, after which he had suffered psychological trauma. He 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.”
10. The Government argued, among other submissions, that the applicant lacked victim status, as he had not expressed any interest in the domestic criminal proceedings, giving evidence only as a witness and not participating in them as an injured person or a civil party.
11. 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 actiopopularis for the interpretation of the rights it contains (see Tănase v. Moldova [GC], no. 7/08, § 104, ECHR 2010, and Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 101, ECHR 2014, with further references).
12. In the present case, the Court has regard to the fact that the applicant complained of the lack of an effective criminal investigation into the events which had allegedly led to his psychological trauma. The Court also notes that the applicant merely gave evidence as a witness without lodging a criminal complaint with the domestic authorities or raising any civil claims (see paragraph 4 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 applicant is not entitled to claim that there were shortcomings in criminal proceedings to which he was not a party. Therefore, the applicant cannot claim to be a victim of a violation of the procedural limb of Article 3 of the Convention.
13. 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.
B. Complaint under Article 6 § 1 of the Convention
14. The applicant 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 …”
15. The Government objected that the applicant lacked victim status, as he had not joined the criminal investigation as an injured person or a civil party.
16. In this respect, the applicant argued that he did have victim status, as the criminal investigation was still ongoing under the supervision of the military prosecutor’s office (see paragraph 5 above).
17. The Court reiterates that the Convention does not confer any right to “private revenge” or to an actiopopularis. 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, 4 November 2014, andAlexandrescu and Others v. Romania, nos. 56842/08 and 7 others, § 22, 24 November 2015).
18. The Court furthermore notes that, while the Romanian Code of Criminal Procedure allows civil parties to seek compensation during criminal proceedings (see paragraphs 6 and 7 above), there is no information in the case file to suggest that the applicant lodged such a request or that he expressed any intention of doing so (see paragraph 4 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, §§ 152-55, 8 September 2009;Rosoga v. Romania (dec.), no. 39681/06, § 22, 5 January 2010; and RoșcaStănescu v. Romania (dec.), no. 49357/08, § 33, 28 January 2014).
19. Accordingly, this complaint is incompatible rationemateriae 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.
C. Complaint under Article 13 of the Convention
20. The applicant complained of the absence of a domestic remedy through which to enable his claims under Articles 3 and 6 § 1 of the Convention to be determined in accordance with Article 13, 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.”
21. 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).
22. In the light of the finding relating to Articles 3 and 6 § 1 (see paragraphs 13 and 19 above), the Court is of the opinion that in the circumstances of the present case the applicant did not have any arguable grievance in terms of the Convention and that Article 13 does not apply.
23. It follows that this complaint is incompatible rationemateriae 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,
Declares the application inadmissible.
Done in English and notified in writing on 18 October 2018.
Andrea Tamietti Georges Ravarani
Deputy Registrar President
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