{"id":5017,"date":"2019-05-17T15:28:35","date_gmt":"2019-05-17T15:28:35","guid":{"rendered":"https:\/\/laweuro.com\/?p=5017"},"modified":"2019-07-13T16:41:02","modified_gmt":"2019-07-13T16:41:02","slug":"case-of-mateescu-v-romania-european-court-of-human-rights","status":"publish","type":"post","link":"https:\/\/laweuro.com\/?p=5017","title":{"rendered":"CASE OF MATEESCU v. ROMANIA (European Court of Human Rights)"},"content":{"rendered":"

FOURTH SECTION
\nCASE OF MATEESCU v. ROMANIA
\n(Application no. 30462\/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 Mateescu 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\u00e9ter Paczolay, 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. 30462\/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 Maria Mateescu (\u201cthe applicant\u201d), on 15 June 2015.<\/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 was given 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 1943 and lives in Bucharest.<\/p>\n

5.\u00a0\u00a0The facts of the case, as submitted by the parties, refer to the same context and domestic criminal proceedings as those described in the caseAssociation \u201c21 December 1989\u201d and Others v. Romania (nos. 33810\/07 and 18817\/08, \u00a7\u00a7 12-41, 24 May 2011).<\/p>\n

6.\u00a0\u00a0During the events which led to the fall of the communist regime, on the night of 21\/22 December 1989 the applicant\u2019s son was killed by gunfire in Bucharest.<\/p>\n

7.\u00a0\u00a0In 1990 the military prosecutor\u2019s office opened several investigations into the December 1989 armed crackdown on the anti-communism demonstrations. A main criminal investigation concerning the use of violence against civilians in Bucharest and other cities was registered with the highest prosecutor\u2019s office \u2013 the military prosecutors section \u2212 under no.\u00a097\/P\/1990 (current number 11\/P\/2014). In the main criminal investigation the applicant raised civil claims and asked that the perpetrators of the offence of homicide committed against her son be identified and punished.<\/p>\n

8.\u00a0\u00a0At the same time, anotherinvestigation concerning the offences of complicity in seriously aggravated homicide and complicity in attempted seriously aggravated homicide, committed against a large number of persons, including the applicant\u2019s son, culminated in the committal for trial of public officials, members of the ruling political party,and their subsequent conviction by a final decision of the Supreme Court of Justice of 20 April 1992.<\/p>\n

9.\u00a0\u00a0The relevant procedural steps taken in the main criminal investigation were described in the casesAssociation \u201c21 December 1989\u201d and Others (cited above, \u00a7\u00a7 12-41) and Sidea and Others v. Romania([Committee] no.\u00a0889\/15<\/a>, \u00a7\u00a7 8-11, 5\u00a0June\u00a02018).<\/p>\n

10.\u00a0\u00a0On 14 October 2015 the military prosecutor\u2019s office closed the main criminal investigation, finding that the applicant\u2019s complaint regarding the offence of homicide committed against her son was statute-barred and that a complaint concerning instigation of homicidewas a matter ofres judicatafollowing the Supreme Court of Justice\u2019s decision of 20 April 1992 (see paragraph8above).<\/p>\n

11.\u00a0\u00a0The decision of 14 October 2015 was subsequently annulled by a Prosecutor General\u2019s decision of 5 April 2016, confirmed by the High Court of Cassation and Justice on 13 June 2016. On 1 November 2016 the military prosecutor ordered the opening of a criminal investigation in remfor the offence of crimes against humanity in respect of the same factual circumstances.<\/p>\n

12.\u00a0\u00a0According to the information submitted by the parties, the main criminal investigation is still ongoing (see B\u0103nu\u021boiuand\u0218tefogluv.\u00a0Romania [Committee], nos. 64752\/13 and 54607\/14<\/a>, \u00a7 12, 3 July 2018).<\/p>\n

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

13.\u00a0\u00a0The legal provisions relevant to the criminal proceedings instituted in connection with the events of December 1989 are referred to in the casesAssociation \u201c21 December 1989\u201d and Others (cited above, \u00a7\u00a7 95-100) and Mocanu and Others v. Romania [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 2 OF THE CONVENTION<\/p>\n

14.\u00a0\u00a0The applicant complained that the criminal investigation carried out by the authorities into the events of December 1989 could not be regarded as effective or capable of leading to the identification and punishment of the persons responsible for the death of her son. She relied on Article 2 of the Convention, which reads as follows:<\/p>\n

\u201c1.\u00a0\u00a0Everyone\u2019s right to life shall be protected by law. No one shall be deprived of his life intentionally …\u201d<\/p>\n

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

15.\u00a0\u00a0The Court notes that this complaint is 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

16.\u00a0\u00a0The Government described the steps taken recently by the national authorities in order to complete the criminal investigation into the events of December 1989 and made reference to their previous arguments in the casesAssociation \u201c21 December 1989\u201d and Others v. Romania (nos. 33810\/07 and 18817\/08, 24 May 2011) and Alecu and Others v. Romania (nos.\u00a056838\/08 and 80 others, 27 January 2015).<\/p>\n

17.\u00a0\u00a0The Court reiterates that an investigation must be effective in the sense that it is capable of leading to a determination of the circumstances of fact and to the identification and punishment of those responsible. This is not an obligation of result, but of means (see Kelly and Others v.\u00a0the\u00a0United\u00a0Kingdom, no. 30054\/96, \u00a7 96, 4 May 2001, and Anguelova v.\u00a0Bulgaria, no.\u00a038361\/97, \u00a7 139, ECHR 2002\u2011IV). The State\u2019s obligation under Article 2 of the Convention will not be satisfied if the protection afforded by domestic law exists only in theory: above all, it must also operate effectively in practice and that requires a prompt examination of the case without unnecessary delays. Any deficiency in the investigation which undermines its ability to establish the cause of death or the person responsible will risk falling foul of this standard (see Varnava and Others v.\u00a0Turkey [GC], nos. 16064\/90 and 8 others, \u00a7 191, ECHR 2009; Association \u201c21 December 1989\u201d and Others, cited above, \u00a7 134; and Mocanu and Others v. Romania [GC], nos. 10865\/09 and 2 others, \u00a7\u00a7\u00a0317\u2011325, ECHR 2014 (extracts)).<\/p>\n

18.\u00a0\u00a0Turning to the instant case, the Court notes that the death of the applicant\u2019s son is covered by the main criminal investigation which was opened shortly after the events of December 1989 and which isstill ongoing under the supervision of the domestic military prosecutor\u2019s office (see paragraph 12 above).<\/p>\n

19.\u00a0\u00a0Taking into account the period after 20 June 1994, when the Convention entered into force in respect of Romania and irrespective of the fact that the investigation was carried out by military prosecutors (see Elena\u00a0Apostol and Others v. Romania, nos. 24093\/14 and 16 others, \u00a7 34, 23\u00a0February 2016), the Court considers that the criminal investigation in the present case does not meet the standards deriving from Article 2 regarding an effective investigation. The Court has regard to its lack of promptness and of reasonable expedition, the non-involvement of the applicants in the proceedings, and the lack of information provided to the public about its progress (see Mocanu and Others, cited above, \u00a7\u00a7 335-48).<\/p>\n

20.\u00a0\u00a0The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of Article 2 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

21.\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

22.\u00a0\u00a0Having regard to the finding relating to Article 2 (see paragraph\u00a020 above), 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

23.\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

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

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

26.\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 2 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 15,000 in respect of non\u2011pecuniary damage, plus any tax that may be chargeable.<\/p>\n

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

27.\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

28.\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 2 of the Convention admissible;<\/p>\n

2.\u00a0\u00a0Holdsthat there has been a violation of Article 2 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 15,000 (fifteen thousand euros), plus any tax that may be chargeable, in respect of non\u2011pecuniary 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

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FOURTH SECTION CASE OF MATEESCU v. ROMANIA (Application no. 30462\/15) JUDGMENT STRASBOURG 16 October 2018 This judgment is final but it may be subject to editorial revision. In the case of Mateescu v. Romania, The European Court of Human Rights…<\/p>\n

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