{"id":5015,"date":"2019-05-17T15:26:31","date_gmt":"2019-05-17T15:26:31","guid":{"rendered":"https:\/\/laweuro.com\/?p=5015"},"modified":"2019-11-01T18:11:28","modified_gmt":"2019-11-01T18:11:28","slug":"case-of-chicheanu-v-romania-european-court-of-human-rights","status":"publish","type":"post","link":"https:\/\/laweuro.com\/?p=5015","title":{"rendered":"CASE OF CHICHEANU v. ROMANIA (European Court of Human Rights)"},"content":{"rendered":"

FOURTH SECTION
\nCASE OF CHICHEANU v. ROMANIA
\n(Application no. 30400\/15)<\/p>\n

JUDGMENT
\nSTRASBOURG
\n16 October 2018<\/p>\n

This judgment is final but it may be subject to editorial revision.<\/p>\n

In the case of Chicheanu v. Romania,<\/strong><\/p>\n

The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:<\/p>\n

Georges Ravarani, President,
\nMarko Bo\u0161njak,
\nP\u00e9terPaczolay, judges,
\nand Andrea Tamietti, Deputy Section Registrar,<\/p>\n

Having deliberated in private on 25 September 2018,<\/p>\n

Delivers the following judgment, which was adopted on that date:<\/p>\n

PROCEDURE<\/strong><\/p>\n

1.\u00a0\u00a0The case originated in an application(no. 30400\/15) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by a Romanian national, Ms Cristina Chicheanu(\u201cthe applicant\u201d), on 15\u00a0June\u00a02015.<\/p>\n

2.\u00a0\u00a0The applicant was represented by Mr I. Matei, a lawyer practising in Bucharest. The Romanian Government (\u201cthe Government\u201d) were represented by their Agent, Ms C. Brumar, from the Ministry of Foreign Affairs.<\/p>\n

3.\u00a0\u00a0On 16 December 2015notice of the application wasgiven to the Government.<\/p>\n

THE FACTS<\/strong><\/p>\n

I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/p>\n

4.\u00a0\u00a0The applicant was born in 1974 and lives in Bucharest.<\/p>\n

5.\u00a0\u00a0During the events which led to the fall of the communist regime in Bucharest, on 21 December 1989, the applicantsuffered injuries caused by impingement and compression,as a result of which she needed 50 days of medical care, her life not being imperilled.<\/p>\n

6.\u00a0\u00a0In 1990 the military prosecutor\u2019s office opened, of its own motion,severalinvestigations into the ill-treatment and injuries suffered by those participating in the events of December 1989. The main criminal investigation was recorded in file no.\u00a097\/P\/1990 (currently no. 11\/P\/2014). As regards the applicant, an investigation was opened under a separate file and she gave a statement as a witness on 23 June 1994. Her case has been further examined at a later date in the main criminal investigation.<\/p>\n

7.\u00a0\u00a0The most important procedural steps were described in the caseAssociation\u00a0\u201c21 December 1989\u201d and Others v. Romania (nos. 33810\/07 and 18817\/08, \u00a7\u00a7 12-41, 24 May 2011), and also in Sidea and Others v.\u00a0Romania([Committee] no. 889\/15 and 38 others<\/a>, \u00a7\u00a7 8-11, 5\u00a0June 2018). Subsequent relevant domestic decisions are referred to below.<\/p>\n

8.\u00a0\u00a0On 14 October 2015 the military prosecutor\u2019s office closed the main investigation, finding that the complaint regarding the offence of attempted homicide committed against the applicant was statute-barred.This decision was annulled by a Prosecutor General\u2019s decision of 5\u00a0April\u00a02016, confirmed by the High Court of Cassation and Justice on 13\u00a0June 2016. It was noted that the investigation under file no. 11\/P\/2014 was incomplete and that the facts could not be established based on the evidence gathered up to that date.<\/p>\n

9.\u00a0\u00a0On 1 November 2016 the military prosecutor ordered the opening of a criminal investigation in\u00a0remfor the offence of crimes against humanity in respect of the same factual circumstances. Up to February 2017 further steps were taken to gather information from domestic authorities: the prosecutor\u2019s office contacted 211 civil parties, questioning members of the political party which took over the presidency at the time of the events, planning the hearing of military officers and other participants in the events, and verifying the activity of the relevant military units and the audio\/video recordings broadcast by radio and television.<\/p>\n

10.\u00a0\u00a0At the date of the latest information available to the Court (see Sidea\u00a0and Others, cited above, \u00a7 11), the criminal investigation was still ongoing.<\/p>\n

II.\u00a0\u00a0RELEVANT DOMESTIC LAW<\/p>\n

11.\u00a0\u00a0The relevant domestic law is set out in Association\u00a0\u201c21\u00a0December 1989\u201d and Others(cited above, \u00a7\u00a7 95-100), and Mocanu and Others v.\u00a0Romania [GC](nos. 10865\/09 and 2 others, \u00a7\u00a7\u00a0193\u201196, ECHR 2014 (extracts)).<\/p>\n

THE LAW<\/strong><\/p>\n

I.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION<\/p>\n

12.\u00a0\u00a0The applicant complained that the criminal investigation opened with respect to the injury she had sustained during the events of December 1989 had been ineffective and incapable of leading to the identification and the punishment of those responsible. She relied on Articles 2 and 3 of the Convention.<\/p>\n

13.\u00a0\u00a0The Court reiterates that it has the power to decide on the characterisation to be given in law to the facts of a complaint by examining it under Articles or provisions of the Convention that are different from those relied upon by the applicant (seeRadomilja\u00a0and\u00a0Others v. Croatia [GC], nos. 37685\/10 and 22768\/12<\/a>, \u00a7 126, 20 March 2018). Having regard to the facts (see paragraph 5 above), the Court considers that the complaint concerning the applicant\u2019s injury must be examined only under the procedural limb of Article 3 of the Convention (contrast \u015eandru\u00a0and Others v. Romania, no. 22465\/03, \u00a7\u00a7 51-54, 8 December 2009, and Dobre\u00a0and\u00a0Others v. Romania, no. 34160\/09, \u00a7\u00a7 33-36, 17\u00a0March\u00a02015).This provision reads as follows:<\/p>\n

\u201cNo one shall be subjected to torture or to inhuman or degrading treatment or punishment.\u201d<\/p>\n

A.\u00a0\u00a0Admissibility<\/strong><\/p>\n

14.\u00a0\u00a0The Court notes that this complaintis not manifestly ill-founded within the meaning of Article 35 \u00a7 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.<\/p>\n

B.\u00a0\u00a0Merits<\/strong><\/p>\n

15.\u00a0\u00a0The Government described the steps taken recently by the national authorities in order to complete the criminal investigation concerning the events of December 1989 and made reference to their previous arguments raised in Association \u201c21 December 1989\u201d and Others v. Romania (nos.\u00a033810\/07 and 18817\/08, \u00a7\u00a7 128-32, 24 May 2011) and Alecu and Others v. Romania (nos.\u00a056838\/08 and 80 others, \u00a7 34, 27 January 2015).<\/p>\n

16.\u00a0\u00a0The Court reiterates that, in the given circumstances, where an individual raises an arguable claim that he or she has been seriously ill\u2011treated by the police or other such agents of the State unlawfully and in breach of Article\u00a03, that provision, read in conjunction with the State\u2019s general duty under Article 1 of the Convention to \u201csecure to everyone within their jurisdiction the rights and freedoms defined in … [the] Convention\u201d, 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, \u00a7 102, Reports of Judgments and Decisions 1998\u2011VIII, and Mocanu and Others v.\u00a0Romania [GC], nos. 10865\/09 and 2 others, \u00a7\u00a7 315-25, ECHR 2014 (extracts)).<\/p>\n

17.\u00a0\u00a0Turning to the circumstances of the present case, the Court first\u00a0observes that according to its findings with respect to its jurisdiction ratione\u00a0temporisin the case of Mocanu and Others (cited above, \u00a7\u00a7\u00a0205\u201111), only the period after 20 June 1994, when the Convention entered into force in respect of Romania, can be taken into consideration in examining the complaint under the procedural limb of Article 3. The Court furthermore notes that the applicant has raised an arguable claim that she was injured during the events of December 1989(see paragraph5 above) and that this claim has been examined in the main criminal investigation (see paragraph\u00a06 above). Nevertheless, the main criminal investigation to which she is a party 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\u2019s office (see Elena Apostoland Others v. Romania, nos.\u00a024093\/14 and 16 others, \u00a7\u00a034, 23\u00a0February 2016), 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 and of the lack of information afforded to the public about the progress of the inquiry (see Association\u00a0\u201c21\u00a0December\u00a01989\u201d and Others, cited above, \u00a7\u00a7 133-45; Mocanu and Others, cited above, \u00a7\u00a7\u00a0335-48; and Alecu\u00a0and\u00a0Others, cited above, \u00a7 39).<\/p>\n

18.\u00a0\u00a0The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of Article 3 of the Convention under its procedural limb.<\/p>\n

II.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 6 \u00a7 1 AND ARTICLE 13 OF THE CONVENTION<\/p>\n

19.\u00a0\u00a0The applicant complained under Article 6 \u00a7 1 of the Convention about the length of the criminal proceedings concerning the events of December 1989 and under Article 13 of the Convention about the absence of an effective remedy to enable her claims to be determined.<\/p>\n

20.\u00a0\u00a0Having regard to the finding relating to Article 3 (see paragraph\u00a018above), the Court considers that it is not necessary to examine the admissibility and the merits of the complaints under Article 6 \u00a7 1 and Article 13 of the Convention (see, among other authorities, Association\u00a0\u201c21\u00a0December\u00a01989\u201d and Others, cited above, \u00a7 181, and Alecu and Others, cited above, \u00a7\u00a045).<\/p>\n

III.\u00a0\u00a0APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/p>\n

21.\u00a0\u00a0Article 41 of the Convention provides:<\/p>\n

\u201cIf 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.\u201d<\/p>\n

A.\u00a0\u00a0Damage<\/strong><\/p>\n

22.\u00a0\u00a0The applicant claimed 100,000 euros (EUR) in respect of pecuniary and non-pecuniary damage.<\/p>\n

23.\u00a0\u00a0The Government considered the claim to be excessive.<\/p>\n

24.\u00a0\u00a0The Court takes the view, on the one hand, that the applicant has failed to demonstrate the existence of a causal link between the violation found and the pecuniary damage alleged; it therefore rejects that claim. On the other hand, the Court finds that the violation of Article 3 of the Convention, under its procedural limb, has caused the applicant substantial non\u2011pecuniary damage, such as distress and frustration. Ruling on an equitable basis, it awards the applicant EUR 7,500 in respect of non\u2011pecuniary damage, plus any tax that may be chargeable.<\/p>\n

B.\u00a0\u00a0Costs and expenses<\/strong><\/p>\n

25.\u00a0\u00a0The applicant did not submit a claim for costs and expenses. The Court is therefore not called upon to make an award in this respect.<\/p>\n

C.\u00a0\u00a0Default interest<\/strong><\/p>\n

26.\u00a0\u00a0The 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.<\/p>\n

FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n

1.\u00a0\u00a0Declares the complaint concerning Article 3 of the Convention admissible;<\/p>\n

2.\u00a0\u00a0Holdsthat there has been a violation of Article 3 of the Convention under its procedural limb;<\/p>\n

3.\u00a0\u00a0Holdsthat there is no need to examine the admissibility and the merits of the complaints under Article 6 \u00a7 1 and Article 13 of the Convention;<\/p>\n

4.\u00a0\u00a0Holds<\/p>\n

(a)\u00a0\u00a0that the respondent State is to pay the applicant, within three\u00a0months, 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;<\/p>\n

(b)\u00a0\u00a0that 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;<\/p>\n

5.\u00a0\u00a0Dismissesthe remainder of the applicant\u2019s claim for just satisfaction.<\/p>\n

Done in English, and notified in writing on 16 October 2018, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n

Andrea Tamietti\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Georges Ravarani
\nDeputy Registrar\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n

Facebook<\/a>Twitter<\/a>LinkedIn<\/a>Pinterest<\/a><\/div>","protected":false},"excerpt":{"rendered":"

FOURTH SECTION CASE OF CHICHEANU v. ROMANIA (Application no. 30400\/15) JUDGMENT STRASBOURG 16 October 2018 This judgment is final but it may be subject to editorial revision. In the case of Chicheanu v. Romania, The European Court of Human Rights…<\/p>\n

Read more →<\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[],"class_list":["post-5015","post","type-post","status-publish","format-standard","hentry","category-available-in-english"],"_links":{"self":[{"href":"https:\/\/laweuro.com\/index.php?rest_route=\/wp\/v2\/posts\/5015","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/laweuro.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/laweuro.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/laweuro.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/laweuro.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=5015"}],"version-history":[{"count":3,"href":"https:\/\/laweuro.com\/index.php?rest_route=\/wp\/v2\/posts\/5015\/revisions"}],"predecessor-version":[{"id":8669,"href":"https:\/\/laweuro.com\/index.php?rest_route=\/wp\/v2\/posts\/5015\/revisions\/8669"}],"wp:attachment":[{"href":"https:\/\/laweuro.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=5015"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/laweuro.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=5015"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/laweuro.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=5015"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}