FOURTH SECTION
\nCASE OF IORDANv. ROMANIA
\n(Applications nos. 43899\/13 and 43903\/13)<\/p>\n
JUDGMENT
\nSTRASBOURG
\n5 June 2018<\/p>\n
This judgment is final but it may be subject to editorial revision.<\/p>\n
In the case of Iordan v. Romania,<\/strong><\/p>\n The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:<\/p>\n Vincent A. De Gaetano, President, Having deliberated in private on 15 May 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 two applications (nos.\u00a043899\/13 and 43903\/13) 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 two Romanian nationals, Mr FloreaIordan (\u201cthe first\u00a0applicant\u201d and Mrs\u00a0Veronica Iordan (\u201cthe second applicant\u201d), on 28\u00a0June\u00a02013.<\/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 14 February 2014the complaints concerning the effectiveness of the criminal investigation, the length of criminal proceedings and the lack of an effective domestic remedy were communicated to the Government and the remaining parts of the applicationswere declared inadmissiblepursuant to Rule 54 \u00a7 3 of the Rules of Court. As Iulia Antoanella Motoc, the judge elected in respect of Romania, withdrew from sitting in the case (Rule\u00a028\u00a0\u00a7\u00a03 of the Rules of Court), the President decided to appoint Krzysztof Wojtyczek as an ad hoc judge (Rule 29 \u00a7 2 of the Rules of Court).<\/p>\n THE FACTS<\/strong><\/p>\n I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/p>\n 4.\u00a0\u00a0The applicants were born in 1939 and 1944 respectively and live in Dumbr\u0103vi\u021ba, Timi\u0219 County.<\/p>\n 5.\u00a0\u00a0The facts of the case, as submitted by the applicants, refer to the same context and domestic criminal proceedings as those described in Association\u00a0\u201c21 December 1989\u201d and Others v. Romania (nos. 33810\/07 and 18817\/08, \u00a7\u00a7 12-41, 24 May 2011) and \u015eandru and Others v. Romania (no. 22465\/03, \u00a7\u00a7 7-47, 8 December 2009).<\/p>\n 6.\u00a0\u00a0Between 17 and 28 December 1989 many people, including the applicants\u2019 son, participated in anti-communism demonstrations in Timi\u0219oara, Bucharest and other cities in Romania.<\/p>\n 7.\u00a0\u00a0The applicants\u2019 son was killed by gunfire on 23 December 1989 in Timi\u0219oara.<\/p>\n 8.\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 also registered with the highest prosecutor\u2019s office \u2013 the military prosecutors section\u2212 under no. 97\/P\/1990 (current number 11\/P\/2014).<\/p>\n 9.\u00a0\u00a0In cases concerning the events in Timi\u0219oara, a separate investigation was carried outunder file no. 11\/P\/1996, culminating in the referral to court and subsequent conviction of senior military officers by a decision of the High Court of Cassation and Justice of 3 April 2007, which became final on 15 October 2008. As is apparent from the documents submitted by the parties, the death of the applicants\u2019 son did not form part of this investigation, butin the court proceedings the first applicant nonetheless lodged a civil claim regarding his son\u2019s death during the December 1989 events. The court dismissed iton the grounds that he had failed to submit documents substantiating this claim.<\/p>\n 10.\u00a0\u00a0As acknowledged by the Government, both applicants are parties in the main criminal investigation file. On 26 June 2013 they brought civil claims before the prosecutor requesting the right to participate,being civil parties in this file. The applicantshad first made statementsand raised civil claims in criminal investigation files other than file no. 97\/P\/1990 (current number 11\/P\/2014)on 11 January 1990 and 1 March 2000.The parties did not inform the Court whether these files had been joined to the main criminal investigation (see paragraph 8 above).<\/p>\n 11.\u00a0\u00a0The most important steps taken by the prosecutors in the main criminal investigation are summarised in Association \u201c21 December 1989\u201d and Others(cited above, \u00a7\u00a7 12-41) andAnamaria\u2011LoredanaOr\u0103\u0219anu and Others v. Romania ([Committee] nos. 43629\/13 and 74 others, \u00a7\u00a7\u00a010\u201111, 7\u00a0November 2017). Further developments are as follows.<\/p>\n 12.\u00a0\u00a0On 14 October 2015 the prosecutor\u2019s office closed the main investigation, finding that the offences of homicide and instigation to homicide of which the applicants\u2019son had been a victim had become statute\u2011barred.<\/p>\n 13.\u00a0\u00a0Although the parties have not communicated any information regarding the lodging of an appeal against this decision, it is apparent from the prosecutor\u2019s office website that it was subsequently quashed and to date the main criminal investigation is still ongoing (see Anamaria\u2011Loredana\u00a0Or\u0103\u0219anu and Others, cited above, \u00a7 11).<\/p>\n II.\u00a0\u00a0RELEVANT DOMESTIC LAW<\/p>\n 14.\u00a0\u00a0The relevant domestic laws are mentioned in Association \u201c21\u00a0December 1989\u201d and Others(cited above, \u00a7\u00a7 95-100); Mocanu and Others v. Romania ([GC] nos. 10865\/09 and 2 others, \u00a7\u00a7\u00a0193\u2011196, ECHR\u00a02014 (extracts)); and Anamaria\u2011LoredanaOr\u0103\u0219anu and Others(cited above, \u00a7\u00a7\u00a012\u201114).<\/p>\n THE LAW<\/strong><\/p>\n I.\u00a0\u00a0THE JOINDER OF THE CASES<\/p>\n 15.\u00a0\u00a0The Court notes that the applications 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 Court.<\/p>\n II.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION<\/p>\n 16.\u00a0\u00a0The applicants complained that the criminal investigation carried out by the authorities into the events of December 1989 could not be regarded as effective and capable of leading to the identification and punishment of the persons responsible for the death of their son.<\/p>\n They invoked Article 2 of the Convention, which, in so far as relevant, 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 17.\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 18.\u00a0\u00a0The Government referred to the steps taken so far by the domestic authorities during the main criminal investigation in order to establish the facts and to identify those responsible, and concluded that the military prosecutors carrying it out had been independent in arriving at their decisions (see paragraph 11 above).<\/p>\n 19.\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\u00a0v.\u00a0Bulgaria, no.\u00a038361\/97, \u00a7 139, ECHR 2002-IV). The State\u2019s obligation under Article\u00a02 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 \u0160ilih v. Slovenia [GC], no. 71463\/01, \u00a7 195, 9 April 2009; Varnava and Others v. Turkey [GC], nos. 16064\/90 and 8 others, \u00a7 191, ECHR 2009; and Association\u00a0\u201c21\u00a0December 1989\u201d and Others v. Romania (nos. 33810\/07 and 18817\/08, \u00a7 134, 24 May 2011).<\/p>\n 20.\u00a0\u00a0In the present case, taking into account the period after 20\u00a0June\u00a01994, 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 EcaterinaMireaand Others v. Romania, nos.\u00a043626\/13 and 69 others, \u00a7\u00a7 36-37, 12 April 2016), the Court notes that, even if the main criminal investigation under file no. 97\/P\/1990 (current number 11\/P\/2014) was opened by the domestic authorities of their own motion, its excessive length and the lack of activity\u2212 as well as the failure to involve the next of kin of the victims and to inform the public\u2013are characteristicof this investigation, which is still ongoing after more than 28\u00a0years (see Association \u201c21 December 1989\u201d and Others, cited above, \u00a7\u00a0136-145).In addition,the investigation has not so far proved capable ofleading to the establishment of the circumstances of fact or the identification of those responsible for the death of the applicants\u2019 son.<\/p>\n 21.\u00a0\u00a0The foregoing considerations are sufficient to enable the Court to conclude that the criminal investigation opened into the events of December\u00a01989did notcorrespond to the principles enshrined in the Court\u2019s jurisprudence concerning the effectiveness of an investigation.<\/p>\n There has accordingly been a violation of Article 2 of the Convention under its procedural limb.<\/p>\n III.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLES6 \u00a7 1 AND 13 OF THE CONVENTION<\/p>\n 22.\u00a0\u00a0The applicants complained of the length of the criminal proceedings and the absence of an effective domestic remedy for the determination of their claims.They relied on Articles6 \u00a7 1 and 13 of the Convention.<\/p>\n 23.\u00a0\u00a0In the light of the finding relating to Article 2 (see paragraph 21 above), the Court considers that it is not necessary to examine the admissibility and merits of the complaints under Articles 6 \u00a7 1 and\/or 13 of the Convention (see, among other authorities, Association \u201c21 December 1989\u201d and Others, cited above, \u00a7 181).<\/p>\n IV.\u00a0\u00a0APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/p>\n 24.\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 25.\u00a0\u00a0Each applicant claimed 100,000 euros (EUR) in respect of pecuniary and non-pecuniary damage.<\/p>\n 26.\u00a0\u00a0The Government challenged these claims as excessive.<\/p>\n 27.\u00a0\u00a0The 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 the procedural head of Article 2 has caused the applicants substantial non-pecuniary damage, such as distress and frustration. Ruling on an equitable basis, it awards them jointly the amount of EUR 15,000, under this head, plus any tax that may be chargeable.<\/p>\n B.\u00a0\u00a0Costs and expenses<\/strong><\/p>\n 28.\u00a0\u00a0The applicantsdid not submit a claim 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 29.\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 applications in respect of the complaint under Article 2 of the Convention admissible;<\/p>\n 3.\u00a0\u00a0Holdsthat there has been a violation of Article 2 of the Convention under its procedural limb;<\/p>\n 4.\u00a0\u00a0Holdsthat there is no need to examine the admissibility and the merits of the complaints under Articles6 \u00a7 1 and 13 of the Convention;<\/p>\n 5.\u00a0\u00a0Holds<\/p>\n (a)\u00a0\u00a0that the respondent State is to pay the applicants jointly, 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 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 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 6.\u00a0\u00a0Dismissesthe remainder of the applicants\u2019 claim for just satisfaction.<\/p>\n Done in English, and notified in writing on 5 June 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 Vincent A. De Gaetano FOURTH SECTION CASE OF IORDANv. ROMANIA (Applications nos. 43899\/13 and 43903\/13) JUDGMENT STRASBOURG 5 June 2018 This judgment is final but it may be subject to editorial revision. In the case of Iordan v. Romania, The European Court of Human…<\/p>\n
\nGeorges Ravarani,
\nMarko Bo\u0161njak, judges,
\nand Andrea Tamietti, Deputy Section Registrar,<\/p>\n
\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 President<\/p>\n","protected":false},"excerpt":{"rendered":"