{"id":5021,"date":"2019-05-17T15:33:41","date_gmt":"2019-05-17T15:33:41","guid":{"rendered":"https:\/\/laweuro.com\/?p=5021"},"modified":"2019-07-13T16:40:02","modified_gmt":"2019-07-13T16:40:02","slug":"case-giurcanu-and-others-v-romania-european-court-of-human-rights","status":"publish","type":"post","link":"https:\/\/laweuro.com\/?p=5021","title":{"rendered":"CASE GIURCANU AND OTHERS v. ROMANIA (European Court of Human Rights)"},"content":{"rendered":"

FOURTH SECTION
\nCASE OF GIURCANU AND OTHERS v. ROMANIA
\n(Application no. 30365\/15 and 2 other applications)<\/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 Giurcanuand Others 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 three applications 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 three Romanian nationals, on 15 June 2015. The applicants\u2019 personal details are set out in the appended table.<\/p>\n

2.\u00a0\u00a0The applicants were 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 2015 notice of the applications was given to the Government.<\/p>\n

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

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

4.\u00a0\u00a0The facts, as submitted by the parties, are similar to those in the case of Association \u201c21 December 1989\u201d and Others v. Romania(nos. 33810\/07 and 18817\/08, \u00a7\u00a7 12-41, 24 May 2011).<\/p>\n

5.\u00a0\u00a0All applicants were ill-treated and injured on the night of 21\u204422\u00a0December 1989 during the events which led to the fall of the communist regime in Bucharest. The applicant in application no. 30392\/15 (Vasu v. Romania) suffered injuries that needed twenty-two days of medical care and the other two applicants were beaten by militia forces on the same occasion.<\/p>\n

6.\u00a0\u00a0In 1990 the military prosecutor\u2019s office opened, of its own motion,investigations into the illegal detention, ill-treatment and injury suffered by the applicants and other participants in the events of December 1989 in respect of several offences as mentioned below. The main criminal investigation was recorded in file no.\u00a097\/P\/1990 (currently no. 11\/P\/2014).<\/p>\n

7.\u00a0\u00a0At the same time, another investigation concerning the offences of illegal deprivation of liberty, illegal arrest and abusive investigation against a large number of persons, including the applicants, culminated in the committal for trial of senior military and public officials and their subsequent conviction by a decision of the Supreme Court of Justice of 10\u00a0May 1991, which became final on 14 November 1991. It cannot be seen from the court\u2019s decision whether the injured persons, including the applicants, participated in thoseproceedings (see, mutatis mutandis,B\u0103nu\u021boiuand\u0218tefogluv.\u00a0Romania [Committee], nos. 64752\/13 and 54607\/14<\/a>, \u00a7 7, 3 July 2018).<\/p>\n

8.\u00a0\u00a0As regards the offence of improper conduct, the military prosecutor\u2019s office decided on 27 October 1993 (Ms Nicoleta-Lorena Giurcanu\u2011 applicant in application no. 30365\/15, hereinafter \u201cthe first\u00a0applicant\u201d), 9\u00a0March 1994 (Mr Traian Vasu \u2013 applicant in application no. 30392\/15, hereinafter \u201cthe second applicant\u201d)and 27August 1993 (Ms\u00a0Lumini\u021baZeleniuc \u2013applicant in application no. 30410\/15, hereinafter \u201cthe third applicant\u201d) not to open a separate investigation of its own motion on the grounds that the offence of improper conduct fell under a subsequently enacted amnesty law; that decision was communicated only to the third applicant on 25\u00a0September 2008. No decision was adopted in respect of the applicants\u2019 injury.<\/p>\n

9.\u00a0\u00a0Further, without a formal decision to overturn the decisions issued by the military prosecutor\u2019s office (see paragraph 8above) and to reopen the applicants\u2019 respective cases, in the main criminal investigation, the prosecutor heard evidence from the applicants, who reiterated their complaints regarding the offences of illegal deprivation of liberty and assault and battery,based on their ill-treatment and injuries during the events of December 1989. Thus, the first applicant asked on 29 April 2005 to be joined to these proceedings as a civil party and for the investigation of the case to be pursued by the military prosecutor\u2019s office. The second applicant gave statements as an injured party on 7 January 2000 and 23\u00a0November 2004. The third applicant raised civil claims on 25 September 2008 and requested that the persons responsible be identified and committed to stand trial.<\/p>\n

10.\u00a0\u00a0The relevant procedural steps taken in the main criminal investigation were described in Association \u201c21 December 1989\u201d and Others v. Romania (cited above, \u00a7\u00a7 12-41), and Sidea and Others v.\u00a0Romania([Committee] no. 889\/15<\/a>, \u00a7\u00a7 8-11, 5\u00a0June\u00a02018).<\/p>\n

11.\u00a0\u00a0On 14 October 2015 the military prosecutor\u2019s office issued a decision in respect of the offence of instigating illegal deprivation of liberty, concerning all the applicants,by closing the main criminal investigation on the grounds of res judicata in relation to the Supreme Court of Justice\u2019s decision of 10 May 1991 (see paragraph 7 above). In addition, the military prosecutor\u2019s office closed the main investigation in respect of the offence of instigatingimproper conduct regarding the second applicant, as it fell under an amnesty law (see paragraph 8 above). No decision was adopted with respect to the injury and assault and battery complained of by the applicants.<\/p>\n

12.\u00a0\u00a0The decision of 14 October 2015 (see paragraph 11 above) 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

13.\u00a0\u00a0According to the information submitted by the parties, the main criminal investigation is still ongoing (see B\u0103nu\u021boiuand\u0218tefoglu, cited above, \u00a7\u00a012).<\/p>\n

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

14.\u00a0\u00a0The legal provisions relevant to the criminal proceedings instituted in connection with the events of December 1989 are referred to in Association \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\u00a0JOINDER OF THE CASES<\/p>\n

15.\u00a0\u00a0The Court notes that the present cases concern the same factual circumstances and raise similar legal issues. Consequently, it considers it appropriate to order their joinder, in accordance with Rule 42 \u00a7 1 of the Rules of the Court.<\/p>\n

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

16.\u00a0\u00a0The applicants complained that the domestic authorities had not carried out within a reasonable time an effective investigation into the events of December 1989 in Bucharest, during which they had been ill\u2011treated or injured, as provided in Article 3 of the Convention, which 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

17.\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

18.\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, 24 May 2011) and Alecu and Others v.\u00a0Romania (nos. 56838\/08 and 80 others, 27 January 2015).<\/p>\n

19.\u00a0\u00a0The Court reiterates that, in the given 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\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.\u00a0Bulgaria, 28 October 1998, \u00a7 102, Reports of Judgments and Decisions 1998\u2011VIII, and Mocanu and Others v.\u00a0Romania [GC], nos. 10865\/09 and 2\u00a0others, \u00a7\u00a7 315-25, ECHR 2014 (extracts)).<\/p>\n

20.\u00a0\u00a0The Court notes that the 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).<\/p>\n

21.\u00a0\u00a0Having regard to its jurisdiction rationetemporis, permitting 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, and irrespective of the fact that the investigation was carried out by military prosecutors (see Elena Apostoland Others v. Romania, nos.\u00a024093\/14 and 16 others, \u00a7 34, 23 February 2016), the Court further notes that the main criminal investigation to which the applicants are parties is still ongoing after more than 28 years. In that connection, the Court has already found that 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 \u201c21 December 1989\u201d and Others, cited above, \u00a7\u00a7 133-45; Mocanu and Others, cited above, \u00a7\u00a7 335-48; and Alecu and Others, cited above, \u00a7 39).<\/p>\n

22.\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

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

23.\u00a0\u00a0The applicants complained of the length of the criminal proceedings concerning the events of December 1989. They also complained that they did not have at their disposal an effective remedy for the determination of their claims. They relied in that connection on Article 6 \u00a7 1 and Article\u00a013 of the Convention.<\/p>\n

24.\u00a0\u00a0In the light of the finding relating to Article 3 of the Convention (see paragraph\u00a022 above), the Court considers that it is not necessary to examine the admissibility and merits of the complaints under Article 6 \u00a7 1 and Article\u00a013 of the Convention (see, among other authorities, Association\u00a0\u201c21\u00a0December 1989\u201d and Others, cited above, \u00a7 181, and Alecu and Others, cited above, \u00a7\u00a045).<\/p>\n

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

25.\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

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

27.\u00a0\u00a0The Government contested those claims as excessive.<\/p>\n

28.\u00a0\u00a0The Court takes the view, 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 finds 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 to each of the applicants EUR 7,500 under this head.<\/p>\n

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

29.\u00a0\u00a0The applicants did not submit any claims for costs and expenses. The Court is therefore not called to make an award in this respect.<\/p>\n

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

30.\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\u00a0Decidesto join the applications;<\/p>\n

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

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

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

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

(a)\u00a0\u00a0that 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 State at 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 amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;<\/p>\n

6.\u00a0\u00a0Dismissesthe remainder of the applicants\u2019 claims 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
\nDeputyRegistrar\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\u00a0 President<\/p>\n

 <\/p>\n

APPENDIX<\/strong>\u00a0<\/strong><\/p>\n\n\n\n\n\n\n
No.<\/strong><\/td>\nApplication no. and<\/strong><\/p>\n

date of introduction<\/strong><\/td>\n

Applicant\u2019s name<\/strong><\/p>\n

Date of birth<\/strong><\/p>\n

Place of residence<\/strong><\/td>\n

Particular circumstances of the application<\/strong><\/td>\n<\/tr>\n
1.<\/td>\n30365\/15<\/p>\n

15\/06\/2015<\/td>\n

Nicoleta-Lorena GIURCANU<\/strong><\/p>\n

07\/02\/1975<\/p>\n

Bucharest\u00a0<\/strong><\/td>\n

Beaten by the militia<\/em> forces and placed in detention in a centre for minors in Bucharest, on the night of 21\u204422\u00a0December 1989.<\/p>\n

\u00a0<\/strong><\/td>\n<\/tr>\n

2.<\/td>\n30392\/15<\/p>\n

15\/06\/2015<\/td>\n

Traian VASU<\/strong><\/p>\n

10\/06\/1944<\/p>\n

Bucharest\u00a0<\/strong><\/td>\n

Beaten by the militia<\/em> forces and placed in detention in Jilava Prison, Bucharest, on the night of 21\u204422 December 1989.<\/td>\n<\/tr>\n
3.<\/td>\n30410\/15<\/p>\n

15\/06\/2015<\/td>\n

Lumini\u021ba ZELENIUC<\/strong><\/p>\n

18\/04\/1970<\/p>\n

Bucharest\u00a0<\/strong><\/td>\n

Beaten by the militia<\/em> forces and placed in detention in Jilava Prison, Bucharest, on the night of 21\u204422 December 1989.<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n