CEDH · CASELAW;COMMUNICATEDCASES;ENG — 11 septembre 2013

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s72EB7DC5 { margin-top:18pt; margin-bottom:0pt; text-align:center } .s2D57E2E { font-family:Arial; font-weight:bold; text-decoration:underline; text-transform:uppercase } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase }       THIRD SECTION Application no. 15052/09 Cătălina FILIP against Romania lodged on 9 March 2009 STATEMENT OF FACTS   1.     The applicant, Mrs Cătălina Filip, is a Romanian national, who was born in 1950 and lives in Bucharest. She is represented before the Court by Mrs Chirana Darlaiane, a lawyer practicing in Bucharest. A.     Background to the case and criminal proceedings 2.     The facts of the case, as submitted by the applicant, may be summarised as follows. 3.     On 25 December 1989, the applicant’s husband was shot in the head and killed in Bucharest. The death occurred during the violent events that swept across Romania in December 1989 and led to the overthrow of the communist regime. 4.     On an unspecified date in 1990, the Bucharest Military Prosecutor’s Office (“Prosecutor’s Office”) opened a criminal investigation regarding the death of the applicant’s husband in file no. 651/P/1991. From 1990 to 1994, the Prosecutor’s Office heard several witness testimonies in respect of the investigation concerning the death of the applicant’s husband. 5.     On an unspecified date, the Prosecutor’s Office opened a separate criminal investigation concerning the use of violence in Bucharest during the last days of December 1989 in file no. 97/P/1990. 6.     On 23 May 2007, file no. 651/P/1991 was joined to file no.   97/P/1990. The criminal investigation appears to be still pending before the domestic authorities. B.     Civil proceedings brought by the applicant 7.     On 22 December 2004, the applicant opened civil proceedings against the Romanian Ministry of Public Finances, seeking non-pecuniary damage amounting to 1,000,000,000 lei (ROL) (approximately 25,000 euro (EUR)) on the basis of the provisions of Articles 998-999 of the Romanian Civil Code (valid at that date). The applicant invoked the Romanian State’s liability for the lack of diligence in the investigation of the violent events of December 1989 and the identification and the punishment of those responsible for the death of her husband. 8.     By a judgement of 2 February 2006, the Bucharest District Court dismissed the proceedings opened by the applicant as time-barred ( prescris ), by allowing the objection on the statute of limitation of the right to trial ( prescripția dreptului la acțiune ) and rejecting the objection on the lack of defendant capacity ( lipsa calitǎții procesuale pasive ), as invoked by the Ministry of Public Finances. 9.     The applicant lodged an appeal on points of law ( recurs ) against the judgement. 10.     By a judgement of 12 March 2007, the Bucharest County Court allowed the applicant’s appeal and quashed the judgement on the ground that it incorrectly allowed the objection on statute of limitation and referred the case for re-examination to the first instance court. 11.     On 12 June 2008, the Bucharest District Court allowed the proceedings opened by the applicant and ordered the Romanian Ministry of Public Finances to pay to the applicant 100,000 lei (RON) (approximately EUR 27,000) in non-pecuniary damage, as well as court fees amounting to RON 3,352 (approximately EUR 900). The court held that the criminal investigation regarding the death of the applicant’s husband was not effective and prompt as required by Article 2 of the Convention, given that during a period of more than 18 years from the death of her husband the only measure taken by the Prosecutor’s Office was to join the file regarding her husband’s death to the file concerning the events of December 1989 in Bucharest. Therefore, the court considered that the conditions for triggering the tort liability of the Romanian Ministry of Public Finances were met, namely the existence of a prejudice for the applicant, in particular the restlessness, confusion and extended suffering derived from the lack of an answer as to the circumstances in which the applicant’s husband was killed and the identification and punishment of those responsible and a causal link between the unlawful deed and the damage incurred. 12.     The Ministry of Public Finances appealed on points of law against the judgement. 13.     On 3 February 2009, the Bucharest County Court partially allowed the Ministry of Public Finances’ appeal on points of law and ordered it to pay RON 50,000 (approximately EUR 12,000) in non-pecuniary damage to the applicant for the ineffective criminal investigation into the death of the applicant’s husband during the violent events of December 1989 in Bucharest. In order to determine the non-pecuniary damage, the court held that it should take into consideration generally but also in respect of the present case the gravity and the intensity of the psychological suffering caused to the applicant who was a victim of the unlawful deed, the consequences of such prejudice on a social and family level, as well as the equity criterion. It considered that the overall amount aimed at compensating the applicant’s lack of peace of mind and psychological well ‑ being relating to the conduct of an effective, complete and prompt investigation in finding out the truth about the death of her husband cannot exceed the amount of RON 50,000. In addition, it upheld the first instance court’s judgment on the restitution to the applicant of the court fees relating to the civil proceedings brought by her. COMPLAINT Relying on Article 2 of the Convention the applicant complains of the ineffectiveness of the criminal investigation opened by the authorities into the death of her husband. In addition she argues that the amount awarded by the domestic courts was insufficient to cover the damage suffered by her further to her husband’s death and that, in determining the amount of compensation the domestic courts did not take into account the death of her husband and other negative consequences on a personal, social and professional level triggered by that.   QUESTIONS TO THE PARTIES   1.     May the applicant still claim to be victim of a violation of the Convention, within the meaning of Article 34 thereof? In particular, did the fact that she obtained non-pecuniary damages following civil proceedings opened by her in respect of the ineffectiveness of the investigation into her husband’s death in December 1989 suffice to remedy the alleged violation of Article 2 of the Convention?   2.     Is the Court competent ratione temporis to analyse the applicant’s complaint under the procedural head of Article 2 of the Convention?   3.     If so, did the investigation conducted by the domestic authorities satisfy the conditions of adequacy and promptness as required under the procedural head of Article 2 of the Convention?