CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 23 avril 2024

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ROMANIA (Application no. 42917/16)   JUDGMENT   This judgment was revised in accordance with Rule 80 of the Rules of Court in a judgment of 17 June 2025   Art 8 (+ Art 14) • Private life • Discrimination • Acquittal of two high-ranking military officials previously convicted of crimes connected with the Holocaust, in extraordinary appeal proceedings not disclosed to the applicants, as Holocaust victims, or to the public • Results and surrounding context of proceedings capable of having a sufficient impact on applicants’ sense of identity and self-worth • Emotional suffering reaching the “certain level” or the “threshold of severity” required • Art   8 (+ Art   14) applicable • Principles developed in case-law involving anti-Semitic statements or Holocaust denial applicable in the present case • Significance of international-law background and of common international or domestic legal standards of European States • Retrials concerned a matter of utmost public interest • Retention of files relating to initial convictions and retrial proceedings kept by the secret services • Initial refusal to allow applicants access to the files without reasonable justification • Failure to bring acquittals to the public’s attention or make judgments accessible and findings and reasoning of acquittal decisions, could have legitimately provoked in the applicants feelings of humiliation and vulnerability and caused them psychological trauma • Failure to adduce relevant and sufficient reasons for actions leading to revision of historical convictions, in absence of new evidence, by reinterpreting historically established facts and denying the responsibility of State officials for the Holocaust, contrary to international law principles • Authorities’ actions excessive and could not be justified as “necessary in a democratic society” Art 34 • Victim • Not necessary to establish a direct connection between acts committed by the two military officials and the applicants, as crimes at issue directed against a whole group of people and given applicants’ personal fate • Applicants could claim to have personally suffered from an emotional distress when they found out about the reopening of the criminal proceedings and acquittals • Applicants could be seen as having personal interest in proceedings aimed at establishing the responsibility of high-ranking members of the military of the Holocaust in Romania   Prepared by the Registry. Does not bind the Court.   STRASBOURG 23 April 2024 FINAL   23/07/2024   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Zăicescu and Fălticineanu v. Romania, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:   Gabriele Kucsko-Stadlmayer , President ,   Tim Eicke,   Faris Vehabović,   Yonko Grozev,   Armen Harutyunyan,   Ana Maria Guerra Martins,   Sebastian Răduleţu , judges , and Andrea Tamietti, Section Registrar, Having regard to: the application (no.   42917/16) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Romanian nationals, Mr   Leonard Zăicescu (“the first applicant”) and Ms Ana Fălticineanu (“the   second applicant”), on 14 July 2016; the decision to give notice of the application to the Romanian Government (“the   Government”); the decision to grant the application   priority   under Rule 41 of the Rules of Court; the parties’ observations; Having deliberated in private on 7 November 2023 and 12 March 2024, Delivers the following judgment, which was adopted on the latter date: INTRODUCTION 1.     The applicants alleged that their rights under Articles 3, 6 § 1, 8 and 14   of the Convention and Article   1 of Protocol No. 12 to the Convention had   been breached owing to the acquittal of two military officials previously convicted for crimes connected with the Holocaust, in proceedings that had not been disclosed to them, as victims of the Holocaust, or to the public. THE FACTS 2 .     The applicants were born in 1927 and 1929 respectively and live in Bucharest. They were represented by Ms G. Iorgulescu, executive director of   the Centre for Legal Resources (“the CLR”), a Romanian non ‑ governmental organisation based in Bucharest. 3.     The Government were represented by their Agent, most recently Ms   S.M.   Teodoroiu, of the Ministry of Foreign Affairs. 4.     The facts of the case may be summarised as follows. I.         HISTORICAL BACKGROUND AND THE WAR CRIMES TRIALS AFTER THE SECOND WORLD WAR IN ROMANIA 5 .     In September 1940, Romanian Prime Minister Ion Antonescu entered into an alliance with a Romanian extreme-right political movement with an anti ‑ Semitic agenda that included enacting anti-Semitic legislation that led, inter alia , to the expropriation of property belonging to Romanians of Jewish   ethnic origin and the internal displacement of the Jewish population. On 22   June 1941, by the decision of Prime Minister Antonescu, Romania entered the Second World War on the side of Germany, to free its territories from their occupation by the Soviet Union in June 1940 stemming from the   Molotov-Ribbentrop Pact concluded in 1939. This decision was followed   by deportations of Jews to Transnistria (a region outside the borders   of Romania, but under the administration of the Romanian Government between 1941 ‑ 1944) and three pogroms, involving mass violence against Jewish communities. The most important one took place in Iași (a city in the region of Moldova, in north-eastern Romania) at the end of June/beginning of July   1941, and resulted in the killing of more than 13,000   Jews, including children. 6 .     According to his statement, the first applicant, who was fourteen in June   1941 and lived in Iași, is a survivor of the Iași pogrom. He witnessed the   killings of his father, uncle, grandfather and best friend. He was then taken   from his home in Iași and put on a “death train” in a car with 140   people   and was placed in the Jewish ghetto of the town of Podul   Iloaiei (in the north of the Moldova region). He was released several months later and returned home orphaned. According to a report issued by the International Commission on the Holocaust in Romania (see paragraph   19 below), the purpose of the Iași pogrom was to clean the city of Jews: many of them were killed on the streets of the city on 28 and 29 June 1941, others were forcibly loaded onto freight cars with planks hammered over the windows and travelled several days in unimaginable conditions. Many died and others were gravely affected by heat and a lack of air, water, food and medical attention. Those trains arrived at their destinations – the ghettos of Podul   Iloaiei and Călăraşi – with only one fifth of their passengers alive and were subsequently dubbed “death trains”. 7 .     According to the second applicant, who was eleven years old in 1941, she was taken from her home in Cernăuți (a city in Northern Bukovina – a region with a strong Jewish community which was part of Romania between 1918 ‑ 1940 and 1941-1944) and placed in a ghetto awaiting deportation to the concentration camps in Transnistria. There she had limited access to food, endured poor hygienic conditions, suffered frostbite to her feet and was forced to wear the yellow star of David on her clothes. After one year in the ghetto, she escaped deportation by hiding in the house of relatives for three years, living in fear, without leaving the house and without access to education. 8 .     In 1945, after the signing of an armistice agreement acknowledging Romania’s defeat in the Second World War (see paragraph 32 below) and after the Communist Party entered the government in Romania, two People’s   Tribunals ( Tribunalele Poporului ) were established under Law   no.   312/1945 on the prosecution and sanctioning of those guilty of bringing the country to disaster and of war crimes (“Law no. 312/1945”, see paragraph 33 below). The tribunals tried as war criminals the people responsible, inter alia, for the massacres of the Jewish population. Evidence was gathered and examined in respect of around 2,700 cases concerning almost 4,000 suspected war criminals, by a commission whose members were   appointed by royal decree at the proposal of the Minister of Justice (an office held by the Communist Party), and which included both laymen and military prosecutors. In about half of the cases examined, the commission found sufficient evidence to send the suspects to trial. Under these proceedings, former Prime   Minister Antonescu was sentenced to death on 17   May 1946 and executed one month later. The activity of these special tribunals ended in June 1946, although some of the sentences were not pronounced until later. 9 .     At the end of the 1940s and in early 1950s, a new set of trials of war criminals took place before the ordinary courts, on the basis of the newly adopted Law no. 291/1947 on the prosecution and sanctioning of those guilty of war crimes or crimes against peace and humanity (“Law no. 291/1947”), as amended by Decree no. 207/1948 on the prosecution of war criminals (see paragraph   33 below). 10 .     Within this context, in July 1951, R.D. (a lieutenant-colonel and the former head of the Second Section of the Romanian Army General Staff – Marele Stat Major ) and G.P. (a lieutenant-colonel and former head of office of the Second Section, under the direct command of R.D.) were charged with   war crimes. The indictment, prepared by a prosecutor of the War Crimes   Department of the Prosecutor’s Office of the Bucharest Court of Appeal, stated that “the Second Section of the General Staff [had been] transformed into an instrument to put in practice – directly or through its subordinates – all the political and racial extermination measures initiated by   the German and Romanian fascist leaders”. It furthermore mentioned that   the two accused had cooperated with the leaders of the Special Intelligence Service (the Romanian secret services, which reported directly to former Prime   Minister Antonescu and to the Romanian Army General Headquarters – Marele Cartier General ) in the carrying out of the Iași pogrom and that they had both participated directly in the organisation and carrying out of deportations of Jews from Bessarabia, Bukovina and Moldova. 11 .     By a judgment of 15 August 1953, the Bucharest County   Court convicted R.D. and G.P. of war crimes and crimes against humanity on the basis of Law no. 291/1947 (see paragraph 33 below), for having jointly: 1)   ill ‑ treated prisoners; 2)   cooperated with the Special Intelligence Service in   the enactment of the pogrom that had taken place in Iași in June   1941; and   3)   participated directly in the organisation and carrying out of deportations of Jews from Bessarabia and Bukovina. The reasoning of the judgment, delivered by a panel of the criminal section of the court – composed of one judge and two popular assessors (laymen elected by the local authorities for a four-year term) and with the participation of the prosecutor – was based on witness testimony and documents signed by the two accused, found in the file prepared by the commission attached to the People’s Tribunals (see paragraph   8 above). These documents included correspondence sent by R.D. to his subordinate, G.P. (who was located in Iași) discussing practical arrangements in view of the deportation of Jews from this town, correspondence from the Second Section of the General Staff   to G.P. who was overseeing the deportation of Jews on the field in various areas of Bessarabia, Bukovina (including the city of Cernăuți) and Moldova, and other correspondence in which G.P. was sending his superiors intelligence gathered in the field (for example, information about security breaches in the Podul   Iloaiei ghetto). R.D. argued in his own defence that the   measures taken against Jews in Iași had been ordered and executed directly by the German troops and that he had had no involvement. G.P. argued that he had merely executed orders that he received from R.D. to find   out how the transport of Jews was being carried out. After summarising and evaluating the evidence both in favour and against the accused, the court   found that all the facts, as described in the indictment (see paragraph   10 above), had been fully proved. R.D. and G.P. were sentenced to fifteen and ten years of imprisonment with hard labour, respectively, and total confiscation of assets. The judgment became final on 26 May 1954 when an appeal lodged by the defendants was dismissed by the Supreme Court of Justice. 12 .     In 1955 Law no. 291/1947 was repealed by a parliamentary decree that put an end to the prosecution and trial of war criminals (“Decree   no.   421/1955”, see paragraph 34 below). Pursuant to this decree, the   remaining unserved sentences received by people convicted on the basis of the above-mentioned Law, including R.D. and G.P., were pardoned. As a result, R.D. and G.P. were released from prison. G.P. died soon after. 13.     In 1956 the President of the Supreme Court lodged of his own motion   an extraordinary appeal ( recurs în supraveghere ) against both judgments of 1953 and 1954 (see paragraph 11 above) in so far as they concerned R.D. By a preliminary judgment of 5 March 1956, the appeal was allowed and the two judgments were quashed – but only in relation to R.D., given that G.P. had died in the meantime. As a result, the case was sent for retrial in order to clarify the legal classification of the facts and the jurisdiction of the military courts to hear cases concerning war crimes. 14 .     By a judgment of 24 January 1957, the Bucharest Military County Court undertook a fresh examination of the case and changed the legal classification of the acts committed by R.D. into the crime of engaging in intense activity against the working class and the revolutionary movement ( activitate intensă contra clasei muncitoare și a mișcării revoluționare ) under   Article   193 1   §   1 of the Criminal Code (see paragraph   35 below) because the people who had been arrested and placed in ghettos and concentration camps at his orders had been members of the working class. R.D. was found guilty of this crime and he was sentenced to five years’ imprisonment and total confiscation of assets. The sentence was deemed to fall under the terms of the pardon decree (see paragraph 12 above). R.D. stated in his own defence that he had had no knowledge or involvement in any actions against the Jewish population. The judgment was adopted by a panel composed of one military judge and two popular assessors (see paragraph   11 above) – of which one was a member of the military. A military   prosecutor was present throughout the proceedings. The reasoning that the court gave for its decision was as follows: “Even before the start of the war, the defendant prepared a series of measures meant to ensure the safety of the rear of the fighting troops ( siguranța spatelui trupelor ). Once   the war started the defendant, R.D., in cooperation with the SSI [Special Intelligence Service], ordered the arrest of people acting in the revolutionary movement,   the Communist Party. To this end, he contributed to the creation of ghettos ( ghetouri ) and concentration camps ( lagăre ) for Jews and to the placement of communists in concentration camps. The defendant had ordered his subordinates to investigate suspects and to clean the rear of the fighting troops of elements that were considered dangerous to the safety of the troops. The defendant has personally ordered the placement in concentration camps of a large   number of Jews ... The defendant admitted only partially to the accusations against him, but all of them are proved by statements from witnesses ... and by the documents in the file ... It could not be established with certainty whether the defendant R.D. had made any contribution in the organisation of the massacres of Jews in Iași, these [massacres] having been a diversion created by the German and Romanian authorities in order to distract attention from the defeats that they had taken on the anti-Soviet front. ... The tribunal finds it proven that the defendant R.D. was the head of the Second Section of Intelligence and Counterintelligence of the [Romanian Army] General Staff and subsequently of the first echelon of the Romanian Army General Headquarters from February   1941 onwards. It also finds it proven that the defendant, together with other State authorities (the Special Intelligence Service), took a series of measures against communists and those considered a danger to the safety of the troops and the advancement of the war. Thus, between June 1940 and June 1941 he ordered the placement in concentration camps of a high number of Jews and the investigation and indictment of people suspected of having communist or Soviet affiliations between June 1940 and June 1941. ...” II.       RETRIALS AFTER THE FALL OF THE COMMUNIST REGIME 15 .     After the fall of the Communist regime, between 1990 and 2000, several extraordinary appeals ( recurs ȋn anulare – see paragraph 37 below) were lodged by the Prosecutor General seeking the acquittal of those convicted of war crimes (see paragraph 30 below). 16 .     Within this context, on 30 March 1998 and 10 May 1999, following extraordinary appeals lodged by the Prosecutor General (who argued that the   acts for which R.D. and G.P. had been convicted had not contained the elements of a crime since the two men had no involvement in any measures against the Jewish population), the Supreme Court of Justice quashed the judgments of 1953, 1954 (see paragraph 11 above) and 1957 (see paragraph   14 above), reopened the proceedings and acquitted R.D. and G.P. On the basis of the same documents and witness statements as those previously examined by the courts, the court found in a judgment of 30   March   1998 that – as regards the deportation of Jews – R.D. had merely complied with orders received from higher-ranking officials of the Romanian   Army General Headquarters by forwarding those orders in the field. The court deemed that those orders had been based on lists (of names) compiled by the Romanian Special Intelligence Service and by the gendarmerie and that it had been German troops who had actually carried them out. In respect of a separate appeal lodged by the Prosecutor General at   the request of G.P.’s successors, the same court found on 10   May 1999 that   the Second Section of the Romanian Army General Staff – in which G.P.   had exercised his functions – had had no involvement either in the Iași massacre or in the deportations and placement of Jews in ghettos (a witness statement mentioning that those activities had been organised and carried out   solely by German troops). Accordingly, in both cases – noting the absence   of any evidence showing their direct involvement – the court considered that the two defendants had simply carried out their military duties and that their actions could not be considered crimes under the legal framework applicable at the time of their conviction. The confiscation measures were lifted in respect of both defendants. 17 .     According to the wording of the above-mentioned judgments, the proceedings were held in public in the presence of ex   officio legal representatives on behalf of the defendants who were both deceased and of the prosecutor. It can be seen from the documents in the file that the case files   of the proceedings of 1953 and 1957 were kept by the secret services and were sent to the court for the purpose of the retrials. The Government submitted that, following the conclusion of the two extraordinary appeals above, the respective judicial case files were placed in the archives of the secret services. In 2004 the same case files were sent for storage at the CNSAS (the National Council for the Study of the Archives of the Securitate   – the Communist-era secret police). III.     THE REPORT OF THE INTERNATIONAL COMMISSION ON THE HOLOCAUST IN ROMANIA 18 .     On 22 October 2003, at the initiative of the President of Romania – in   the first official admission after the end of the Communist regime that the Romanian authorities had played a role in the Holocaust – the International Commission on the Holocaust in Romania (“the ICHR”) was established as an independent research body conceived with the aim of researching the facts   and determining the truth about the Holocaust in Romania during the Second World War. In addition to its chairman, Holocaust survivor Elie Wiesel, the Commission included experts in history and social sciences, survivors of the Holocaust, and representatives of national and international Jewish and Roma non ‑ governmental organisations and of the Office of the Romanian President. 19 .     The final report of the Commission (“the ICHR report”) – an extensive   document of 416   pages – was published in November 2004, both online and in print. Its findings were based on the study of historic documents and on testimony gathered by the members of the Commission. At   the   launching of the report the President of Romania made a public statement recognising, for the first time at such high level, that the Holocaust   had been made possible in Romania by the complicity of high ‑ rank   State authorities such as the secret services, the army and the police   and of those who had implemented – sometimes to an excessive degree   – the orders of Prime Minister Antonescu. The President also noted that during the Romanian Holocaust thousands of Jews had been killed in Romania and around 120,000 had been deported to Transnistria, of whom several tens of thousands had died; moreover, legislation had been adopted excluding Jews from schools and universities, bar associations, theatres or   the   army, Jewish property had been confiscated and Jewish men subjected to forced labor. 20 .     The ICHR report mentioned that the pogrom against the Jews of Iași (see paragraph 5 in fine above) was carried out under express orders from Prime   Minister Antonescu that the city be cleansed of all Jews. The Second Section of the Romanian Army General Staff and the Special Intelligence Service laid the groundwork for the Iași pogrom and supplied the pretext for punishing the city’s Jewish population, while German army units stationed in   the city assisted the Romanian authorities. 21 .     Under the heading “Contemporary conclusions and recommendations” the ICHR report mentioned: Reversing the rehabilitation of war criminals ( Anularea reabilitării criminalilor de război ) “Since the fall of communism in Romania, we have witnessed the acquittal of various   war criminals who had been directly responsible for the crimes of the Holocaust. These include, for example, the well-known war criminals [R.D.] and [G.P.],   whose acquittal was recently ordered by the Supreme Court. The government of   Romania must take every measure available to it to annul their acquittal and, in any case, should forcefully, unequivocally, and publicly condemn these war criminals (and   others like them) for their crimes. ... The Commission concludes, along with the vast majority of bona fide researchers in this field, that the Romanian authorities bear the main responsibility for both planning, as well as for the implementation of the Holocaust. This includes deportation to Transnistria and the systematic extermination of the majority of Jews from Bessarabia and Bucovina, as well as from other areas of Romania; mass killing of Romanian and local Jews in Transnistria; the massive executions of the Jews in the Iași pogrom; the systematic discrimination and degradation to which they were all subjected during the Antonescu administration, including the expropriation of goods, dismissal from jobs, forced evacuation from rural areas and concentration in county capitals and in camps, as well as the massive use of male Jews to forced labor under the same administration. The Jews were subjected to degradation for the simple reason that they were Jews, they   lost the protection of the state and became its victims. ... When Romania made alliance with Nazi Germany in the war against the Jews, the Antonescu regime started from already existent pre-Nazi Romanian anti-Semitic and fascist ideologies in order to initiate and implement the Holocaust in Romania. The Romanian State used the army, gendarmes, policemen, civil servants, journalists,   writers, students, mayors, public and private institutions, as well as industrial and commercial enterprises with the purpose of diminishing and destroying the Jews under its administration. The orders were issued in Bucharest, not in Berlin. When the Antonescu government decided to stop the extermination of the Jews, it ceased. The change in policy towards the Jews began in October 1942, before the defeat at Stalingrad, and the deportations ended definitively in March-April   1943. They   were   followed by negotiations about the repatriation of the deported Jews that helped survive at least 292,000 Romanian Jews. Of all the allies of Nazi Germany, Romania bears the responsibility for the greatest contribution to the extermination of the Jews, outside of Germany itself. The massacres   committed in Iași, Odessa, Bogdanovca, Dumanovca and Peciora are among the most hideous crimes committed against the Jews during the Holocaust. Romania   committed genocide against Jews, and the survival of some Jews in certain parts of the country does not change this reality. Seen from the perspective of the facts summarized in this report of the Commission, the efforts to rehabilitate those who committed these crimes are all the more aberrant and worrying. Nowhere in Europe is a person who committed mass crimes like Ion Antonescu, Hitler’s loyal ally until the last moment, publicly honored as a national hero.   Official communist historiography has often tried to mitigate or deny outright the   responsibility for the murder of the Jews, throwing the entire blame on the Germans   and downgraded elements of the Romanian society. In post-communist Romania, political and cultural elites often prefer to ignore and sometimes encourage propaganda pro-Antonescu, a fact that opened the door to the explicit denial of the Holocaust and the rehabilitation of some convicted war criminals.   Few voices rose publicly against this trend.” IV.    THE CONFERENCE HELD BY THE INSHR-EW 22 .     In 2005, by government decision, the “Elie Wiesel” National Institute   for the Study of the Holocaust in Romania (“the INSHR-EW”) was created as a public institution functioning under the Ministry of Culture and Religious Cults; financed from the State budget, the main object of its activities was the identification, collection, archiving and publication of documents related to the Holocaust, the solving of scientific problems, and the development and implementation of educational programmes regarding this historical phenomenon. 23 .     On 26   January 2016 the INSHR-EW held a public conference entitled   “Crimes of war in times of peace: the acquittal of Holocaust perpetrators by the Romanian post-communist judiciary”. On this occasion, extensive research conducted in the archives of the CNSAS (see paragraph   17 above) was presented by a historian (an editor at Sfera Politicii   magazine   –   see paragraph 67 below), who supported his presentation   with copies of the judgments of 30 March 1998 and 10 May 1999 (see paragraph 16 above). The applicants attended the conference, having been invited in their capacity as Holocaust survivors by the INSHR ‑ EW. V.      ATTEMPTS BY THE APPLICANTS TO OBTAIN COPIES OF THE AQCUITTAL FILES 24 .     On 18 February 2016, the applicants, represented by the CLR (see paragraph   2 above), lodged with the High Court of Cassation and Justice (the   former Supreme Court of Justice – hereinafter “the High Court”) a request for copies of the files concerning the trials that had ended with the judgments of 30   March 1998 and 10 May 1999 (see paragraph 16 above). In   the event that the files were not held by the High   Court, the applicants requested to be informed where they had been archived. On 9 and 22 March 2016 the High   Court replied that the files in question had been sent to two   military units in Bucharest and that no copies or other information were available. 25 .     In the meantime, on 3 March 2016 the applicants, again represented by the CLR, lodged a request with the CNSAS (see paragraph 17 above) to   be   granted access to and copies of the above-mentioned files. In a written reply of 29 March 2016, which followed a telephone conversation with the applicants’ representative on 17   March 2016, the CNSAS noted that the relevant legal framework provided for only two possible scenarios under which the applicants could be granted such access: (i) on the basis of Government Emergency Ordinance no. 24/2008 on access to personal files and the exposure of the Securitate (see paragraph 39 below) in the event that   the requested files contained information gathered by the former Securitate regarding the applicants or (ii) pursuant to Law no. 221/2009 on politically ‑ driven convictions and assimilated administrative measures (see paragraph   41 below) in case the requested files consisted of judgments, indictments, prison files, or reports concerning the applicants or the confiscation of their assets. The CNSAS advised that if the applicants’ situation did not fall under the above two scenarios, they could seek to be accredited as researchers. 26 .     On 31 March 2016, the applicants’ representative was informed by a CNSAS representative that she should address her request to the INSHR ‑ EW,   which had obtained a copy of the files in question for research purposes. 27 .     On 15 May 2016 the applicants’ representative brought a judicial action seeking that the High Court be ordered to grant them access to the files   or to provide them with information regarding the location of these files   in order to be able to prepare their application to the Court. They argued   that the refusal to grant them access to the files in question amounted to a breach of their rights, as guaranteed by Article 34 of the Convention. Moreover, the information given about the military units to where the files had been sent (see paragraph   24 above) was not sufficient to allow them to identify those units. They based their action on the provisions of the Civil Code governing the compulsory enforcement of obligations, Articles 20 § 2 and 21 of the Constitution (which provided, respectively, that international conventions took precedence over national law and stipulated that all citizens   had the right of access to the courts) and on Article 34 of the Convention arguing that, in the absence of access to the files in question, their   right to petition the Court would be breached. 28 .     By a final judgment of 14 March 2018, the Bucharest Court of Appeal   dismissed the action as unfounded, holding that the reply of the High   Court to the applicants’ request (see paragraph 24 above) had been in accordance with the law. 29.     In the meantime, following a request lodged by the applicants with the   INSHR-EW, that they be permitted to consult the files in question and that copies of those files be delivered to them, on 23   May 2016 electronic copies of the files at issue were delivered to the applicants’ representative by   the INSHR-EW. 30 .     On 23 September 2019 the CLR lodged a request for information with   the prosecutor’s office attached to the High Court in order to find out how many extraordinary appeals had been lodged by the Prosecutor General seeking the acquittal of those convicted for war crimes on the basis of Law   no.   312/1945 (see paragraph 33 below). They also requested copies of the judgments delivered in respect of these appeals. In its reply of 1   October 2019, the prosecutor’s office noted three extraordinary appeals that had been   allowed by the High Court: one appeal concerning a group of journalists   – allowed in 1995; one concerning two leaders of a historical political party that had been in opposition to the Communist Party – allowed in 1998; and one concerning the Minister of Finance of the Antonescu Government – allowed in 2000. The applicants’ representative was informed   that copies of judgments adopted in respect of extraordinary appeals   could be obtained only from the High Court. 31 .     On 23 September 2019 the CLR lodged a request with the High   Court   that it be provided with a copy of the judgment adopted in respect   of a request for the revision of the conviction of A.G., the governor of Transnistria between 1941 and 1944, who had been convicted of war crimes on the basis of Law no. 312/1945 in the same proceedings as those concerning former Prime   Minister Antonescu (see paragraph 8 above). The request was granted, and a copy of the judgment was delivered to the applicants. In that judgment, adopted on 6 May 2008, the High Court had rejected an application for a revision of the conviction judgment lodged by A.G.’s relatives, deeming that the facts on which the application had been based were not new and did not change the factual situation as established by the conviction judgment, so as to call for its revision. RELEVANT LEGAL FRAMEWORK AND PRACTICE I.         DOMESTIC LEGAL FRAMEWORK AND PRACTICE A.    Relevant criminal law 32 .     On 12 September 1944 an armistice agreement was signed between the Governments of the United States of America, the United Kingdom, and the Union of Soviet Socialist Republics (acting in the interest of the United Nations) and the Government of Romania; the agreement recognised Romania’s defeat in the Second World War and its engagement to continue   the war on the side of the Allied Powers against Germany and Hungary. Under this agreement Romania undertook to end all relations with   Germany and to enter the war on the side of the Allied Powers against Germany. It also agreed to release all persons held in confinement on account   of their racial origin, to dissolve all fascist organisations and to repeal all discriminatory legislation and restrictions imposed thereunder. Furthermore, Romania undertook to apprehend and send to trial all persons accused of war crimes. 33 .     In the enforcement of the above agreement, Law no. 312/1945 on the prosecution and sanctioning of those guilty of bringing the country to disaster   and of war crimes (“Law no. 312/1945”) provided for the creation of   People’s Tribunals and set forth the rules of procedure regarding the prosecution and trial of war criminals. It also provided for the death penalty for those guilty of war crimes and mentioned that their prosecution and trial could be pursued only until 1 September 1945. On 15 August 1947, following   an analysis of the activity of the People’s Tribunals, the new Law   no.   291/1947 on the prosecution and sanctioning of those guilty of war crimes or crimes against peace and humanity (“Law no. 291/1947”) was enacted. Its provisions were mostly similar with those of Law   no.   312/1945, except for the abrogation of the death penalty for such crimes. Law   no.   291/1947 was subsequently amended by Decree   no.   207/1948, the most important change being the annulment of the statutory time ‑ limits. 34 .     Decree no. 421 of 24 September 1955 repealed Law   no.   291/1947 and   annulled the remaining unserved parts of the sentences of those convicted   of war crimes on the basis of Laws nos. 312/1945 and   291/1947. 35 .     Article 193 1 was inserted into the Criminal Code in 1954 or 1955, was   never published and was applied retroactively. According to the Government’s submissions, it provided, in the relevant part, as follows: Article 193 1 – Activity against the working class “1.     Intense activity against the working class or the revolutionary movement exerted   [by a person] in a position of responsibility in the State apparatus or in a secret service, during the bourgeois regime – shall be punished by life imprisonment with hard   labour (inchisoare grea) and total confiscation of property.” 36 .     Since 1960 the Criminal Code has included provisions punishing crimes against peace and humanity. 37 .     Under Articles 409-413 of the Code of Criminal Procedure, as in force   at the relevant time, an extraordinary appeal ( recurs ȋn anulare ) could be lodged by the Prosecutor General of its own motion or at the request of the   Minister of Justice against any final judgment at any point in time. The court examining the appeal had the power to decide whether or not to summon   the parties. These provisions, which had first been introduced during   the dictatorship of King Charles II and had been maintained during the   Communist regime, were finally repealed in December 2004. B.    Provisions concerning access to files held by the CNSAS 38 .     According to its statute, as adopted by decision no. 2 of 18   December   2008, the CNSAS (see paragraph   17 above) is a public institution that administers and stores the archives of the Securitate . Access to the archives may be gained in the manner described below. 39 .     By way of access to one’s personal file: under Article   1 of Government Emergency Ordinance no. 24/2008 on access to one’s personal file and the disclosure [ deconspirarea – that is to say the exposure to public scrutiny] of the Securitate , any Romanian citizen or foreign citizen who after   1945 held Romanian citizenship, and any citizen of a member State of the North Atlantic Treaty Organization or of a member State of the European   Union, has the right of access to his or her own Securitate file, as well as other documents and information concerning himself/herself stored at   the CNSAS. 40.     By way of a request to be allowed to undertake research, pursuant to Article   39 of the regulations governing the functioning and the organisation of the CNSAS, which reads as follows in its relevant parts: “(1)   In order to establish the historical truth about the Communist dictatorship, the CNSAS ... issues accreditation to researchers [both] outside and within the CNSAS on   the basis of a request that states the research topic, the nature of the research (whether   historical, political, psychological, or sociological) and its end result (book, article, conference) and provides [such researchers] with documents and information on the structure, methods and activities of the Securitate . (2)   Accredited researchers may [acquire] access to files/documents from the archive of the CNSAS on the basis of [lodging] a request. Its content must mention the nature of the research (historical, political, psychological, or sociological study), as well as the   [purpose] (for example, article, study, bachelor’s thesis, doctoral thesis).” 41 .     And lastly, by way of requests lodged by courts within the context of proceedings conducted on the basis of Article 4 of Law no. 221/2009 on politically driven convictions and assimilated administrative measures (“Law   no.   221/2009”), as in force at the relevant time: on