{"id":5746,"date":"2019-05-29T18:51:55","date_gmt":"2019-05-29T18:51:55","guid":{"rendered":"https:\/\/laweuro.com\/?p=5746"},"modified":"2020-10-03T16:41:29","modified_gmt":"2020-10-03T16:41:29","slug":"tanasescu-and-others-v-romania-european-court-of-human-rights","status":"publish","type":"post","link":"https:\/\/laweuro.com\/?p=5746","title":{"rendered":"TANASESCU AND OTHERS v. ROMANIA (European Court of Human Rights)"},"content":{"rendered":"

FOURTH SECTION
\nDECISION<\/p>\n

Application no. 30469\/15
\nIon-Nicolae-Sorin T\u0102N\u0102SESCU against Romania
\nand 2 other applications
\n(see list appended)<\/p>\n

The European Court of Human Rights (Fourth Section), sitting on 4\u00a0September 2018 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 regard to the above applications lodged on 15 June 2015,<\/p>\n

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,<\/p>\n

Having deliberated, decides as follows:<\/p>\n

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

1.\u00a0\u00a0A list of the applicants is set out in the appendix.<\/p>\n

2.\u00a0\u00a0The Romanian Government (\u201cthe Government\u201d) were represented by their Agent, Ms C. Brumar, from the Ministry of Foreign Affairs.<\/p>\n

A.\u00a0\u00a0The circumstances of the case<\/strong><\/p>\n

3.\u00a0\u00a0The facts of the case, as submitted by the parties, may be summarised as follows.<\/p>\n

4.\u00a0\u00a0The applicants participated in the anti-communist demonstrations in December 1989 in Bucharest. In 1990 the military prosecutor\u2019s office opened a criminal investigation in respect of the December 1989 armed crackdown on the events in Bucharest. According to the documents submitted to the Court by the parties, the applicants were interviewed at the military prosecutor\u2019s office as witnesses in connection with the use of violence against civilian demonstrators. They did not lodge criminal complaints, and nor did they join the criminal proceedings as civil parties. The applicants suffered no physical injuries. However, they cited psychological suffering that they had experienced following the events of December 1989. In that connection, they were evaluated in March and April 2015 respectively by a psychologist from the ICAR Foundation, a non\u2011governmental organisation that focuses on providing medical, psychological, social and legal support to victims of totalitarian regimes on political grounds, using the \u201cthe Hospital Anxiety and Depression Scale\u201d (a\u00a0scale developed as a means of detecting states of depression and anxiety in the setting of a hospital medical outpatient clinic).\u00a0In the ICAR\u00a0Foundation reports regarding the applicants it was concluded that they had presented scores which could suggest a subjacent pathology related to trauma following their involvement in the above-mentioned events. No other relevant medical evidence or supporting documents were submitted to the file. No decision was adopted by the military prosecutor\u2019s office in respect of their particular situation.<\/p>\n

5.\u00a0\u00a0The most important procedural steps taken during the investigation are described in Association \u201c21 December 1989\u201d and Others v. Romania (nos.\u00a033810\/07 and 18817\/08, \u00a7\u00a7 12-41, 24 May 2011) and Sidea\u00a0and\u00a0Others v. Romania ([Committee] no. 889\/15 and 38 other applications<\/a>, \u00a7\u00a7\u00a05-11, 5 June 2018). Currently the criminal investigation is ongoing before the military prosecutor\u2019s office.<\/p>\n

B.\u00a0\u00a0Relevant domestic law<\/strong><\/p>\n

6.\u00a0\u00a0The relevant legal provisions are described in Association \u201c21\u00a0December 1989\u201d and Others, cited above, \u00a7\u00a7 95-100.<\/p>\n

7.\u00a0\u00a0The relevant provisions of the former Code of Criminal Procedure (which were in force until 1 February 2014) regarding the initiation of a civil action related to criminal proceedings, read as follows:<\/p>\n

Article 15<\/p>\n

\u201cThe 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.<\/p>\n

Joining the proceedings as a civil party may be undertaken either during the criminal investigation or in court, before the charges are read out … .\u201d<\/p>\n

The New Code of Criminal Procedure now in force contains similar provisions:<\/p>\n

Article 20<\/p>\n

\u201c1.\u00a0\u00a0Joining the proceedings as a civil party may be undertaken until the beginning of the court examination (p\u00e2n\u0103 la \u00eenceperea cercet\u0103rii judec\u0103tore\u0219ti) (…).\u201d<\/p>\n

COMPLAINTS<\/strong><\/p>\n

8.\u00a0\u00a0Relying on Articles 3, 6 \u00a7 1 and 13 of the Convention, the applicants complained about the ineffectiveness and length of the criminal investigation carried out in respect of the events of December 1989 and about the absence of an effective domestic remedy.<\/p>\n

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

A.\u00a0\u00a0Joinder of the cases<\/strong><\/p>\n

9.\u00a0\u00a0Having regard to the similar subject matter of the applications, the Court finds it appropriate to order their joinder (Rule 42 \u00a7 1 of the Rules of Court).<\/p>\n

B.\u00a0\u00a0Complaint under Article 3 of the Convention<\/strong><\/p>\n

10.\u00a0\u00a0The applicants complained of the lack of an effective, impartial and thorough investigation capable of leading to the identification and punishment of those responsible for the violent crackdown on the demonstrations of December 1989, after which the applicants had allegedly suffered psychological trauma.<\/p>\n

They invoked 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

11.\u00a0\u00a0The Government contended that the applicants had not substantiated their complaints\u00a0with relevant documents and asked the Court to reject their submissions.<\/p>\n

12.\u00a0\u00a0The applicants contended that they had been injured parties in the criminal investigation in respect of the ineffectiveness of which they complained.<\/p>\n

13.\u00a0\u00a0The Court reiterates that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum level of severity is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim. Allegations of ill-treatment must be supported by appropriate evidence. To assess this evidence, the Court adopts the standard of proof \u201cbeyond reasonable doubt\u201d but adds that such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see, amongst many other authorities, Jalloh v. Germany [GC], no. 54810\/00, \u00a7\u00a067, ECHR 2006\u2011IX).<\/p>\n

14.\u00a0\u00a0In the present case, the Court notes that the applicants did not submit medical certificates attesting to any physical after\u2011effects of their participation in the events of December 1989. As regards the reports on their respective psychological evaluations, the Court observes that it was only in 2015 that the applicants had been examined (see paragraph 4 above). In addition, the reports contain no conclusion regarding the existence of psychological trauma suffered by the applicants in connection with the events of December 1989. Their conclusions are limited to suggesting a subjacent pathology related to possible trauma suffered following those events. Furthermore, they have not been supported by any other relevant medical documents. The Court also notes that the applicants have failed to demonstrate that they complained to the authorities after these events in order to provide them with a detailed description of their suffering.<\/p>\n

15.\u00a0\u00a0Having regard to the circumstances of the present case \u2013 in particular the absence of any evidence concerning any direct physical and mental effects on the applicants of the alleged acts, and the omission, by the applicants, to lodge a complaint with the domestic authorities \u2013 the Court considers that the latter were not confronted with a prima facie credible claim of ill-treatment. Under these circumstances, it cannot be concluded that the Romanian authorities have failed to comply with the procedural obligations arising from Article 3 of the Convention in respect of the applicants (see, mutatis mutandis, Bo\u0219nigeanu and Others v. Romania, nos.\u00a056861\/08 and 33 others, \u00a7\u00a7 39-40, 4 November 2014, and Alexandrescu and Others v. Romania, nos. 56842\/08 and 7 others, \u00a7\u00a7 42-44, 24 November 2015).<\/p>\n

16.\u00a0\u00a0It follows that this complaint must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 \u00a7\u00a7 3 (a) and 4 of the Convention.<\/p>\n

C.\u00a0\u00a0Complaint under Article 6 \u00a7 1 of the Convention<\/strong><\/p>\n

17.\u00a0\u00a0The applicants complained that the length of the criminal proceedings was incompatible with the \u201creasonable time\u201d requirement laid down in Article 6 \u00a7 1 of the Convention, which reads as follows:<\/p>\n

\u201cIn the determination of his civil rights and obligations … everyone is entitled to a … hearing within a reasonable time by [a] … tribunal …\u201d<\/p>\n

18.\u00a0\u00a0The Government objected that the applicants lacked victim status, as they had not suffered any physical or psychological injuries during the events of December 1989 and they had not joined the criminal investigation as injured or civil parties.<\/p>\n

19.\u00a0\u00a0In this respect, the applicants argued that they did have victim status, as the criminal investigation was still ongoing before the military prosecutor\u2019s office.<\/p>\n

20.\u00a0\u00a0To the extent that the applicants invoke Article 6 \u00a7 1 of the Convention to complain about the length of the criminal proceedings at issue, the Court reiterates that the Convention does not confer any right, as demanded by the applicants, to \u201cprivate revenge\u201d or to an actio popularis. Thus, the right to have third parties prosecuted or sentenced for a criminal offence cannot be asserted independently; it must be indissociable from the victim\u2019s exercise of his or her right to bring civil proceedings under domestic law (see Perez v. France [GC], no. 47287\/99, \u00a7 70, ECHR\u00a02004\u2011I). Therefore, in principle the victim of an offence may only invoke his or her rights under Article 6 in relation to criminal proceedings against an offender if he or she has joined those proceedings as a civil party in order to obtain damages or to otherwise protect his or her civil rights (contrast Bo\u0219nigeanu and Others, cited above, \u00a7 19, andAlexandrescu\u00a0and\u00a0Others, cited above, \u00a7 22).<\/p>\n

21.\u00a0\u00a0The Court furthermore notes that while the Romanian Code of Criminal Procedure allows civil parties to request compensation during criminal proceedings (see paragraph 7 above), there is no information in the case file to suggest that the applicants lodged such a request or that they expressed any intention of doing so (see paragraph 4 above). Accordingly, Article 6 \u00a7 1 of the Convention is not applicable to the present case (see, mutatis mutandis, Pop Blaga v. Romania(No.\u00a01) (dec.), no. 37379\/02, \u00a7\u00a7\u00a0152-155, 08 September 2009; Rosoga v. Romania (dec.), no.\u00a039681\/06, \u00a7\u00a022, 05 January 2010; and Ro\u0219ca St\u0103nescu v. Romania (dec.), no.\u00a049357\/08, \u00a7 33, 28 January 2014).<\/p>\n

22.\u00a0\u00a0Accordingly, this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 \u00a7 3\u00a0(a) and must therefore be rejected, in accordance with Article 35 \u00a7 4.<\/p>\n

D.\u00a0\u00a0Complaint under Article 13 of the Convention<\/strong><\/p>\n

23.\u00a0\u00a0The applicants complained of the absence of a domestic remedy through which to enable their claims raised under Articles 3 and 6 \u00a7 1 of the Convention to be determined in accordance with Article 13 of the Convention, which states as follows:<\/p>\n

\u201cEveryone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.\u201d<\/p>\n

24.\u00a0\u00a0The Court notes that Article 13 has been consistently interpreted by the Court as requiring a remedy only in respect of grievances which can be regarded as \u201carguable\u201d in terms of the Convention (see Athanassoglou\u00a0and\u00a0Others v. Switzerland [GC], no. 27644\/95, \u00a7\u00a058, ECHR\u00a02000\u2011IV).<\/p>\n

25.\u00a0\u00a0In the light of the finding relating to Articles 3 and 6 \u00a7 1 of the Convention (see paragraphs 16 and 22 above), this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article\u00a035\u00a0\u00a7\u00a03\u00a0(a) and must therefore be rejected, in accordance with Article 35 \u00a7 4.<\/p>\n

For these reasons, the Court, unanimously,<\/p>\n

Decides to join the applications;<\/p>\n

Declares inadmissible the applications.<\/p>\n

Done in English and notified in writing on 27 September 2018.<\/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 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 President<\/p>\n

 <\/p>\n

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

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<\/tr>\n

1.<\/td>\n30469\/15<\/p>\n

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

Ion-Nicolae-Sorin <\/strong>T\u0102N\u0102SESCU<\/strong><\/p>\n

14\/07\/1971<\/p>\n

Bucharest<\/td>\n<\/tr>\n

2.<\/td>\n30473\/15<\/p>\n

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

Irina-Cristina ADAM<\/strong><\/p>\n

25\/05\/1969<\/p>\n

Bucharest<\/td>\n<\/tr>\n

3.<\/td>\n30479\/15<\/p>\n

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

Bogdan-Eugen ANGHEL<\/strong><\/p>\n

28\/08\/1966<\/p>\n

Bucharest<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n