Last Updated on July 13, 2019 by LawEuro
FOURTH SECTION
DECISION
Application no. 39663/15
Radu CRISTIAN
against Romania
The European Court of Human Rights (Fourth Section), sitting on 4 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 31 July 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 Radu Cristian, is a Romanian national, who was born in 1958 and lives in Brașov. He was represented before the Court by Mr V. Tudor, a lawyer practising in Codlea.
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 events of 24 December 1989 which led to the overthrow of the communist regime, suffering injuries by gunshot in Brașov, which required thirty days of medical care.
5. In 1990 the military prosecutor’s offices from several cities opened criminal investigations on their own motion in respect of these events. The main criminal investigation was opened under file no. 97/P/1990 (currently no. 11/P/2014) by the highest prosecutor’s office – the military prosecutors section – in Bucharest.
6. The applicant’s case was registered separately under file no. 207/P/1993 by the Brașov military prosecutor’s office. On 27 July 1993 the applicant asked the prosecutor’s office to deliver him a document certifying his participation in the 1989 events in order to obtain the related pecuniary rights. The applicant expressed the same position on 17 August 1993 when he gave evidence in respect of the events during which he had been shot. On 14 June 1996 the prosecutor decided not to open an investigation, as the criminal acts were time‑barred. In addition, it noted that the applicant had not lodged a criminal complaint for the offence of bodily injury.
7. However, the applicant’s case was further examined in the main criminal investigation, irrespective of a formal decision ordering its re‑opening. On 4 May 2006 the applicant gave a statement to the prosecutor. He expressly mentioned that he did not want to participate in the criminal proceedings as a civil party and asked to be heard as a witness.
8. The relevant procedural steps taken in the main criminal investigation are described in Association “21 December 1989” and Others v. Romania (nos. 33810/07 and 18817/08, §§ 12-41, 24 May 2011).
9. On 14 October 2015 the prosecutor’s office closed the main investigation, finding that the offence of incitement to murder, of which the applicant had been a victim, had become statute-barred. This decision was subsequently annulled. Currently the main criminal investigation is ongoing before the prosecutor’s office(see Sidea and Others v. Romania [Committee], no. 889/15 and 38 other applications, §§ 5-11, 5 June 2018).
B. Relevant domestic law
10. The relevant legal provisions are described in Association “21 December 1989” and Others (cited above, §§ 95-100, 24 May 2011).
The relevant provisions of the former Code of Criminal Procedure (which were in force until 1 February 2014) regarding the participants in criminal proceedings are the following:
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 a 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 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 in 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 in these proceedings and is referred to as the civil party.”
COMPLAINT
11. The applicant complained under Article 2 of the Convention of the lack of an effective criminal investigation into the events of December 1989 during which he had been injured by gunshot.
THE LAW
12. The applicant’s complaint relates to the domestic authorities’ failure to carry out an effective and thorough investigation into the events of December 1989 in Brașov.
13. The Government argued, among other submissions, that the applicant lacked victim status, as he had not expressed any interest in the domestic criminal proceedings, waiving his right to participate as an injured or civil party and giving evidence only as a witness.
14. 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 claim to be a victim of a violation, 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).
15. In the present case, the Court has regard to the fact that the applicant denounced the lack of an effective criminal investigation into the events which led to his injury. The Court also notes that it was the applicant himself who had expressly renounced his right to be an injured party or a civil party, asking to be treated as a witness instead (see paragraph 7 above). In that connection, the Court considers that the applicant cannot claim there had been shortcomings in a criminal investigation in which he had refused to participate. In addition, the Court observes that the applicant’s interest was related rather to the pecuniary rights granted to participants in the 1989 events (see paragraph 6 above).
16. It is true that a decision had been adopted by the prosecutor in 2015 in respect of the events of December 1989, including in the applicant’s case (see paragraph 9 above). However, the Court notes that the applicant would not have been able to claim a breach of his rights recognised by the Convention after having expressly informed the domestic authorities of his wish not to be a party in the domestic proceedings. Therefore, the applicant cannot claim to be a victim of a violation of Article 2 of the Convention.
17. It follows that the application 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.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 27 September 2018.
Andrea Tamietti Georges Ravarani
Deputy Registrar President
Leave a Reply