CASE OF BĂNUȚOIU AND STEFOGLU v. ROMANIA (European Court of Human Rights)

FOURTH SECTION
CASE OF BĂNUȚOIU AND ȘTEFOGLU v. ROMANIA
(Applications nos. 64752/13 and 54607/14)

JUDGMENT
STRASBOURG
3 July 2018

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

In the case of Bănuțoiu and Ștefoglu 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 12 June 2018,

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

PROCEDURE

1.  The case originated in two applications (nos. 64752/13 and 54607/14) 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 NicolaeBănuțoiu(“the first applicant”) and Mrs EcaterinaȘtefoglu(”the second applicant”), on 8 October 2013 and 28 July 2014 respectively.

2.  The applicants were represented by Mr IonuțMatei, a lawyer practising in Bucharest. The Romanian Government (“the Government”) were represented by their Agent, Mrs C. Brumar, from the Ministry of Foreign Affairs.

3.  On14 February 2014 and 10 July 2015 the complaints concerning the effectiveness of the criminal investigation, the length of the criminal proceedings and the lack of an effective remedy were communicated to the Government, and the remainder of application no. 64752/13 was declared inadmissible, pursuant to Rule 54 § 3 of the Rules of Court. As Iulia AntoanellaMotoc, 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 1965 and 1954 respectively and live in Bucharest.

5.  Both applicants were ill-treated and injured on 21 December 1989 during the events which led to the fall of the communist regime in Bucharest. The first applicant suffered injuries that needed eight days of medical care and the second applicant was beaten by militia forces on the same occasion.

6.  In 1990 the military prosecutor’s office opened ex officioinvestigations into the illegal detention, ill-treatment and injury suffered by the applicants and other participants in the events of December 1989 in respect ofseveral offences as mentioned below. The main criminal investigation was recorded in file no. 97/P/1990 (current no. 11/P/2014).

7.  In the meantime, an ex officioinvestigation concerning the offences of illegal deprivation of liberty, illegal arrest andabusive investigation of a large number of persons, including the applicants, culminated in the referral to court and subsequent conviction of senior military and public officials by a decision of the Supreme Court of Justice of 10 May 1991, which became final on 14 November 1991. The injured parties, including the applicants, did not participate in that procedure, as the Government acknowledged.

8.  As regards the offence of abusive conduct, the military prosecutor’s office decided on 9 March 1994 (in respect of the first applicant) and 28 October 1994 (in respect of the second applicant)not to open a separate ex officioinvestigation on the grounds that the offence of abusive conduct fell under a subsequently enacted amnesty law; that decision was communicated only to the second applicant on 4 October 2001. No decision was adopted in respect of the applicants’ injury.

9.  Further, without a formal decision to overturn the decisions issued by the military prosecutor’s office (see paragraph 8 above) and to reopen the applicants’ respective cases, in the main criminal investigation, the prosecutor heard the applicants who reiterated their complaints regarding the offences of illegal deprivation of liberty and homicide as an attempt raised on account of their ill-treatment and injury during the events of December 1989.Thus, the first applicant requested on 5 January 2005 and on 4 August 2008 to participate in these proceedings as a civil party and for the investigation of his case to be pursued by the military prosecutor’s office. In the main criminal investigation, the second applicant gave a statementon 4 October 2001 and lodged a civil claim on 17 May 2005, asking for the punishment of those responsible.

10.  The relevant procedural steps taken in the main criminal investigation were described in Association “21 December 1989” and Others v. Romania (nos. 33810/07 and 18817/08, §§ 12-41, 24 May 2011) and Anamaria‑LoredanaOrășanu and Others v. Romania([Committee] (nos. 43629/13 and 74 others, §§ 10‑11, 7 November 2017).

11.  On 14 October 2015,as regards the second applicant, the military prosecutor’s office issued a decision only in respect of the offence of instigation to illegal deprivation of liberty by closing the main criminal investigation on the grounds of res judicata in relation to the Supreme Court of Justice’s decision of 10 May 1991, failing to decide the offence of homicide as an attempt or her injury, as complained of (see paragraph 7 above). No decision was taken in respect of the first applicant.

12.  Although the parties have not communicated any information regarding the lodging of an appeal against this decision, it can be seen from the military prosecutor’s office website that it was subsequently quashed. Thus, on 1 November 2016 the military prosecutor’s office ordered the initiation in rem of a criminal investigation regarding the offence of crimes against humanity in respect of the same circumstances of fact. To date, the main criminal investigation is still ongoing.

II.  RELEVANT DOMESTIC LAW

13.  The relevant domestic laws are mentioned in Association “21 December 1989” and Others(cited above, §§ 95-100), andMocanu and Others v. Romania [GC], nos. 10865/09 and 2 others, § 193‑198, ECHR 2014 (extracts).

14.  The procedure for challenging a prosecutor’s decision to close a case came into force on 1 July 2013 (see Rupa v. Romania (dec.), no. 58478/00, §§ 88-89, 14 December 2004, and DumitruPopescu v. Romania (no. 1), no. 49234/99, §§ 43-45 and 53, 26 April 2007).

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 join the applications, in accordance with Rule 42 § 1 of the Rules of Court.

II.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

16.  The applicants complained that the criminal investigation opened with respect to their ill-treatment and injury during the events of December 1989 had been ineffective and incapable of leading to the identification and the punishment of those responsible.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.”

A.  Admissibility

17.  The Government raised preliminary objections in respect of both applications.

1.  The Government’s objection of incompatibility rationetemporis

18.  The Government argued that the criminal investigation in respect of application no. 64752/13 (Bănuțoiu v. Romania) had been terminated by the military prosecutor’s office before 20 June 1994, the date of the ratification of the Convention by Romania.

19.  The first applicant argued that the Court should examine the entire period between the events of December 1989 and the subsequent investigations owing to the investigators’ failure to conduct an investigation with due diligence in so far as his case was also concerned.

20.  The Courthas already defined its jurisdiction rationetemporis in similar cases (see Association “21 December 1989” and Others v. Romania, nos. 33810/07 and 18817/08, §§ 114-118, 24 May 2011, and Mocanu and Others v. Romania [GC], nos. 10865/09 and 2 others, §§ 207‑211, ECHR 2014 (extracts)),concluding that it was competent to examine complaints relating to the ineffectiveness of criminal investigations into the events of December 1989 when the majority of the proceedings in respect of a case and the most important procedural measures were carried out after the Convention’s entry into force in respect of Romania.

21.  In the present case, the Court notes that after 20 June 1994 the first applicant gave two statements, asking for the investigation of his case to be pursued by the military prosecutor’s office and lodging civil claims,participating as a civil party in the main criminal investigation (see paragraph 9 above).Having examined all the material submitted to it, the Court considers thatthe Government have not put forward any new fact or argument capable of persuading it to reach, in the present case, a conclusion different from that illustrated in the case-law quoted in paragraph 20 above. It therefore dismisses the preliminary objection.

2.  The Government’s objection that the applications were lodged out of time

22.  The Government submitted that both applications had been lodged outside the six-month time-limit. They calculated the period as running from the date of the decisions of the military prosecutor’s office closing their cases on 9 March and 28 October 1994, respectively; in addition, they emphasised that this decision had been communicated to the second applicant on 4 October 2001 (see paragraph8 above).

23.  The applicants contested the Government’s submissions, referring to the shortcomings of the ongoing main criminal investigation.

24.  The Court notes that where an applicant avails himself of an apparently existing remedy and only subsequently becomes aware of circumstances which render the remedy ineffective, it may be appropriate for the purposes of Article 35 § 1 to take the start of the six-month period from the date when the applicant first became or ought to have become aware of those circumstances (see Mocanu and Others, cited above, § 260).

25.  In the present case, the Court observes on the one hand that the decision of the military prosecutor’s office of 9 March 1994 was not communicated to the first applicant; on the other hand, although the decision of the military prosecutor’s office of 28 October 1994 was communicated to the second applicant (see paragraph 8 above), she could not have challenged it at that time (see paragraph 14 above). Moreover, after the issuance of these decisions, the military prosecutor’s office received the applicants’civil claims and their requests for the main criminal investigation to be pursued with regard to the offences of illegal deprivation of liberty and homicide as an attempt following their injury during those events, offences out of which the last one had not made object of the previous investigations.The prosecutor continued the investigation into the circumstances concerning the applicants in the main criminal investigation (see paragraph 9 above).

26.  Having regard to the developments in the investigation, its scope and its complexity, as well as the exceptional circumstances at issue, the Court considers that the applicants could have legitimately believed that the main investigation also concerned their particular situationThe applicants acted reasonably in awaiting an outcome so long as there was a realistic possibility that the investigative measures were moving forward (see, mutatis mutandis, Mocanu and Others, cited above, §§ 275 and 280).

27.  Under these circumstances, the Court cannot conclude that, by introducing their applications on 8 October 2013 and 28 July 2014 respectively (see paragraph 1 above), the applicants failed to comply with the six-month time-limit set forth in Article 35 § 1 of the Convention. It therefore rejects the Government’s preliminary objection.

3.  The Government’s objection regarding lack of victim status

28.  The Government contended that the applicants lacked victim status, given that they had not been part of the main criminal investigation, their cases having been finalised previously under other criminal investigation files.

29.  The applicants argued that they did have victim status, given the absence of an effective investigation and the fact that they had received no compensationin the present case.

30.  The Court reiterates that a decision or measure favourable to an applicant is not in principle sufficient to deprive him or her of his or her status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, a breach of the Convention (see Scordino v. Italy (no. 1) [GC], no. 36813/97, § 180, ECHR 2006‑V).

31.  In the present case, the Court notes that there is no evidence indicating an acknowledgement of the violation claimed by the applicants (that is to say the ineffectiveness of the criminal investigation) or any redress being afforded to them by the domestic authorities in this respect.

32.  The preliminary objection is therefore dismissed.

4.  The Government’s objection of non-exhaustion of domestic remedies

33.  The Government argued that the applicants had not exhausted the domestic remedies as they had not challenged the decisions of the military prosecutor’s office of 9 March and 28 October 1994 to close their cases.In addition, as regards the second applicant, the Government submitted in their observations that she could have obtained compensation by means of a separate civil action.

34.  The applicants contested that argument.

35.  The Court reiterates that the application of the rule of exhaustion of domestic remedies must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights that the Contracting States have agreed to set up. Accordingly, it has recognised that Article 35 § 1 must be applied with some degree of flexibility and without excessive formalism. It has furthermore recognised that the rule of exhaustion is neither absolute nor capable of being applied automatically; for the purposes of reviewing whether it has been observed, it is essential to have regard to the circumstances of the individual case. This means, in particular, that the Court must take realistic account not only of the existence of formal remedies in the legal system of the Contracting State concerned but also of the general context in which they operate. It must then examine whether, given all the circumstances of the case, the applicant did everything that could reasonably be expected of him or her to exhaust domestic remedies (see İlhan v. Turkey [GC], no. 22277/93, § 59, ECHR 2000‑VII).

36.  In the present case, the Court observes that the domestic remedy mentioned by the Government of challenging a prosecutor’s decision to close a case entered into force on 1 July 2003 (see paragraph 14 above) –long after the decisions concerning the applicants or the date of their communication (see paragraph 8 above). Furthermore, during the main criminal investigation, both applicants asked the military prosecutor’s office to pursue the criminal investigation and raised civil claims (see paragraph 9 above). This investigation is ongoing (see paragraph 12 above).

37.  In addition, in connection with the main criminal investigation in the present case, the Court has already considered as relevant the fact that the domestic authorities failed to comply with their obligation to involve the victims in the proceedings (see Alecu and Others v. Romania, nos. 56838/08 and 80 others, § 39, 27 January 2015). From this perspective, the Court is not persuaded that the criminal-law remedy nominally indicated by the Government as available to the applicants would have been capable of altering to any significant extent the course of the investigation that was undertaken. Moreover, the Court notes that the criminal investigation is still ongoing after twenty-eight years, and that the applicants’ complaints focus, inter alia, on the duration,in their view excessive, of that investigation. The Government have not alleged, let alone shown, that any of the internal remedies could have brought a substantial speediness of the domestic proceedings (see Anamaria‑LoredanaOrășanu and Others v. Romania ([Committee], nos. 43629/13 and 74 others, § 44, 7 November 2017, with further references).Moreover, as the Court has already stated (see Association “21 December 1989” and Others, cited above, §§ 125), a civil action for damages could nothave led to the acceleration of the criminal investigation and the identification of those responsible (see also, mutatis mutandis,Cătălina Filip v. Romania, no. 15052/09, § 36, 21 April2015, and Şandru and Others v. Romania, no. 22465/03, §§61-64, 8 December 2009).

38.  In the light of the above considerations, the Court dismisses the Government’s preliminary objection of non-exhaustion of domestic remedies.

5.  Other reasons for inadmissibility

39.  The Court notes that the applicationsare not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It furthermore notes that theyare not inadmissible on any other grounds. They must therefore be declared admissible.

B.  Merits

40.  The Government mentioned the investigative measures taken in the main criminal investigation with a view to establishing the facts and identifying those responsible, emphasising that the military prosecutors carrying it out had acted independentlyin arriving at their decisions.

41.  The Court reiterates that, in the circumstances, where an individual raises an arguable claim that he has been seriously ill-treated by the police or other such agents of the State unlawfully and in breach of Article 3, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in … [the] Convention”, requires by implication that there should be an effective official investigation. This investigation should be capable of leading to the identification and punishment of those responsible. If this were not the case, the general legal prohibition of torture and inhuman and degrading treatment and punishment, despite its fundamental importance, would be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity (see Assenov and Others v. Bulgaria, 28 October 1998, § 102, Reports of Judgments and Decisions 1998‑VIII, andMocanu and Others, cited above, §§ 315-325).

42.  The Court reiterates that its competence rationetemporis permits it to consider only that part of the investigation which occurred after 20 June 1994, the date on which the Convention came into force in respect of Romania (see paragraph 20above).

43.  The Court furthermore notes that both applicants have raised arguable claims that they were ill-treated and injured during the events of December 1989 and that they did address the investigative authorities regarding the matter (see paragraphs 5 and 9 above). Nevertheless, the main criminal investigation to which they are parties is still ongoing after more than 28 years. In that connection, the Court has already found that, irrespective of the fact that the criminal investigation was carried out by the military prosecutor’s office, it was procedurally defective, not only by reason of its excessive length and long periods of inactivity, but also because of the lack of involvement of the victims in the proceedings even before the court(see paragraph 7 above) and of the lack of information afforded to the public about the progress of the inquiry (seeAssociation “21 December 1989” and Others, cited above, §§133-145 and 152-154; Mocanu and Others, cited above, §§335-348; and Alecu and Others, cited above, § 39).

44.  As similar shortcomings are discernible in the present case, the foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of Article 3 of the Convention.

III.  ALLEGED VIOLATION OF ARTICLES6 § 1 AND 13 OF THE CONVENTION

45.  The applicants complained under Article 6 § 1 of the Convention about the length of the criminal proceedings concerning the events of December 1989and under Article 13 of the Convention about the absence of an effective remedy to enable their claims to be determined.

46.  In the light of the finding relating to Article 3 (see paragraph44 above), the Court considers that it is not necessary to examine the admissibility and the merits of the complaints under Articles6§1 and 13ofthe Convention (see, among other authorities, Association“21 December1989” and Others, cited above, § 181, andAlecu and Others, cited above, § 45).

IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

47.  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

48.  The first applicant claimed 150,000 euros (EUR) and the second applicant 100,000 euros (EUR) in respect of pecuniary and non‑pecuniary damage.

49.  The Government considered the claims to be excessive.

50.  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 Article 3 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 each applicant EUR 7,500 in respect of non‑pecuniary damage, plus any tax that may be chargeable.

B.  Costs and expenses

51.  The applicantsdid not submit a claimfor costs and expenses. The Court is therefore not called upon to make an award in this respect.

C.  Default interest

52.  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 3 of the Convention admissible;

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

4.  Holdsthat 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 to each of the applicants, within three months,EUR 7,500 (seven thousand five hundred euros), plus any tax that may be chargeable, in respect of non‑pecuniary damage,to be converted into the currency of the respondent Stateat 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.  Dismissesthe remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 3 July 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Andrea Tamietti                                                          Vincent A. De Gaetano
Deputy Registrar                                                                     President

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