CEDH · CASELAW;COMMUNICATEDCASES;ENG — 16 décembre 2015

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .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 } .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 } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .sFF80D40E { margin-top:24pt; margin-bottom:12pt; text-align:center } .s6DB91820 { text-align:center } .s25B97BCD { margin-right:auto; margin-left:auto; border:0.75pt solid #808080; border-collapse:collapse } .s1B946575 { height:34.45pt } .sD1CDDC62 { border-right:0.75pt solid #808080; border-bottom:0.75pt solid #808080; padding-right:5.03pt; padding-left:5.03pt; vertical-align:top; background-color:#e0e0e0 } .sDF237D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:8pt } .s2490CDBC { border-right:0.75pt solid #808080; border-left:0.75pt solid #808080; border-bottom:0.75pt solid #808080; padding-right:5.03pt; padding-left:5.03pt; vertical-align:top; background-color:#e0e0e0 } .s8DB21C27 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:center; font-size:8pt } .s26ADB50A { border-left:0.75pt solid #808080; border-bottom:0.75pt solid #808080; padding-right:5.03pt; padding-left:5.03pt; vertical-align:top; background-color:#e0e0e0 } .sFD306575 { height:35.55pt } .s2F4AF114 { border-top:0.75pt solid #808080; border-right:0.75pt solid #808080; border-bottom:0.75pt solid #808080; padding-right:5.03pt; padding-left:5.03pt; vertical-align:top } .s6B505E72 { margin:0pt; padding-left:0pt } .s6CF83D49 { margin-left:11.67pt; padding-left:6.18pt; font-family:Arial; font-size:8pt; font-weight:bold } .s898DAE93 { border:0.75pt solid #808080; padding-right:5.03pt; padding-left:5.03pt; vertical-align:top } .sB217F55D { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:8pt } .sA0B2759 { margin-top:0pt; margin-left:0.45pt; margin-bottom:0pt; text-indent:-0.45pt; text-align:justify; font-size:8pt } .sB71F2881 { border-top:0.75pt solid #808080; border-left:0.75pt solid #808080; border-bottom:0.75pt solid #808080; padding-right:5.03pt; padding-left:5.03pt; vertical-align:top } .s299B0C57 { margin-top:0pt; margin-left:0.45pt; margin-bottom:0pt; text-indent:-0.45pt; text-align:center; font-size:8pt } .sBCA334AF { border-top:0.75pt solid #808080; border-right:0.75pt solid #808080; padding-right:5.03pt; padding-left:5.03pt; vertical-align:top } .s7CB6920E { border-top:0.75pt solid #808080; border-right:0.75pt solid #808080; border-left:0.75pt solid #808080; padding-right:5.03pt; padding-left:5.03pt; vertical-align:top } .s62945D10 { border-top:0.75pt solid #808080; border-left:0.75pt solid #808080; padding-right:5.03pt; padding-left:5.03pt; vertical-align:top } .s32563E28 { margin-top:0pt; margin-bottom:0pt }   Communicated on 16 December 2015   FOURTH SECTION Application no. 889/15 Lenuța SIDEA against Romania and 8 other applications (see list appended) 1.     The applicants are all Romanian nationals. The applicants’ personal details, their representatives, as well as details of the events and domestic proceedings to which they were parties are set out in the appended table. A.     Background of the cases and criminal proceedings concerning all applicants 2.     The facts of the case, as they have been submitted by the applicants, are similar to those presented in Association “21 December 1989” and Others v. Romania (nos. 33810/07 and 18817/08, §§ 12-41, 24 May 2011) and Alecu and Others v. Romania , no. 56838/08 and 80 other cases, §§   5 ‑ 14, 27 January 2015. They belong to the same historical context and relate to the same domestic criminal proceedings as those at issue in the above-mentioned cases. They can be summarized as follows. 3.     Following demonstrations against the Government, on 17   December 1989, as ordered by Nicolae Ceauşescu, President of the Republic, military operations were conducted in Timișoara and in the following days in other towns, causing many civilian victims. According to a letter of 5   June   2008 from the military prosecutor’s office at the High Court of Cassation and Justice, “more than 1,200 people died, more than 5,000 people were injured and several thousand people were unlawfully deprived of their liberty and subjected to ill treatment”, in Bucharest, Timişoara, Reşiţa, Buzău, Constanţa, Craiova, Brăila, Oradea, Cluj-Napoca, Braşov, Târgu Mureş, Sibiu and other towns in Romania. In addition, it appears from Ministry of Defence documents, declassified by Government decision no. 94/2010 of 10   February 2010, that thousands of servicemen, equipped with combat tanks and other armed vehicles, were deployed in Bucharest and other cities. During the period from 17 to 30 December 1989 they used considerable quantities of ammunition. 4.     Many people, including the applicants or their relatives, were killed or wounded by gunshot during their participation in demonstrations against the communist regime, from 17 December 1989 in Timişoara, and from 21   December 1989 in Bucharest, Braşov and other cities and towns across the country. According to a report of 24 July 1990 by the Directorate of Military Prosecutor’s Offices ( Direcţia procuraturilor militare ), in the night of 21 to 22 December 1989 “48 persons died and 150 persons were injured in Bucharest as a result of the violent crackdown by the armed forces, including through the use of firearms”. 5.     Many victims were also killed or wounded by gunfire after 22   December 1989, the date on which the then Head of State was deposed. 6.     In Braşov, thirty-nine persons were killed by gunshot in the night of 22 to 23 December 1989 and even more over the following days. According to a document entitled “Conclusions on the result of the investigations conducted in respect of the events which took place in Braşov during the period of 23 to 25   December   1989”, submitted by the Government in the Association “21   December 1989” and Others v. Romania case and drafted by a joint group of seven prosecutors and seven military police officers, after the official announcement on the public radio and the national television that the dictatorship had fallen, the military forces deployed to defend the totalitarian regime against the demonstrators were initially withdrawn to their barracks and the demonstrators’ representatives were able to occupy the county council’s headquarters. Following information on the likelihood that counter-revolutionary elements ( elemente contrarevoluţionare ) would launch an attack, in the evening of 22   December 1989 General F., commandant of the Braşov garrison, was instructed to coordinate “the actions to defend” the achievements of the revolution. He ordered 657 soldiers from six military units out of barracks. The first shots were fired during the night, at about 3   a.m. 7.     During 1990 the military prosecutor’s offices in Bucharest, Brașov, Timişoara, Oradea, Constanţa, Craiova, Bacău, Târgu Mureş and Cluj ‑ Napoca opened investigations into the use of force and unlawful deprivation of liberty in the final days of December 1989. In a number of cases concerning the events in Timişoara and Cluj ‑ Napoca, the investigations culminated in transfer to the courts and the conviction of certain senior military officers (regarding the repression in Timişoara from 17   to   22   December 1989, see the case of Ş andru and Others v.   Romania , no.   22465/03, §§ 6-47, 8   December 2009). 8.     To date, the main criminal investigation into the use of violence, especially against civilian demonstrators, both prior to and following the overthrow of Nicolae Ceauşescu, is still pending and is the subject matter of file no. 97/P/1990. The most important procedural steps can be summarized as follows. 9.     On 20 September 1995, prosecutor S. in the military prosecutors’ office at the Supreme Court of Justice issued a decision discontinuing proceedings in case no. 97/P/1990, which concerned persons killed or injured by gunfire. 10.     By a decision of 7 December 2004, not communicated to the applicants, the military prosecutor’s office at the High Court of Cassation and Justice set aside the decision of 20 September 1995, issued in case no.   97/P/1990, as unlawful and unfounded. 11.     By a decision of the same day, namely 7 December 2004, the military prosecutor’s office ordered the indictment of 102 persons, essentially officers, including high-ranking officers, from the Army, police and Securitate forces, for murder (Articles 174-176 of the Criminal Code), genocide (Article 357 of the Criminal Code), inhuman treatment (Article   358 of the Criminal Code), attempting, aiding and abetting in the commission of these offenses and participation lato sensu ( participaţie improprie ) in them, acts committed “during the period from 21 to 30   December 1989”. Sixteen civilians, including a former President of Romania and a former Head of the Romanian Intelligence Service, were also charged. 12.     Several criminal investigations into the fatal crackdown on the demonstrations of December 1989, which had initially been conducted separately, were joined to the investigation that was the subject matter of case no. 97/P/1990. 13.     The criminal investigation into the events having occurred during the night of 22 to 23   December 1989 in Brașov was the subject of case no.   158/P/1990 before the Braşov military prosecutor’s office. By a decision of 28 December 1994 the proceedings in the case were discontinued. 14.     By a decision of 30 August 1999, the military prosecuting authorities set aside the decision of 28 December 1994, on the ground that the investigation had been incomplete and “that there was no evidence to justify exonerating from criminal liability the persons who had been under an obligation to direct and coordinate the servicemen’s actions [...] in such a way as to maintain control of the situation and avoid loss of life or injuries to innocent persons”. 15.     By a decision of 9 January 2006, the military prosecution authorities ordered that the file concerning the investigation into the fatal repression in Braşov be joined to case no. 97/P/1990. 16.     By a decision of 15 January 2008, the military prosecuting authorities at the High Court of Cassation and Justice decided to severe the investigation concerning the sixteen civilian defendants (including a former President of Romania and a former Head of the Romanian Intelligence Service) from the investigation involving military personnel, and to relinquish its jurisdiction in favour of the prosecutor’s office at the High Court of Cassation and Justice. 17.     By an Ordinance of 18 October 2010, the military prosecuting authorities decided not to institute criminal proceedings with regard to the acts committed by the military, partly for prescription and partly as unfounded. The investigation into the crimes committed by civilians, members of patriotic guards, members of the militia and prison staff was severed and jurisdiction was relinquished in favour of the prosecuting authorities at the High Court of Cassation and Justice. 18.     On 15 April 2011 the chief prosecutor at the military prosecutor’s office set aside the decision of 18 October 2010 on the grounds that the investigation had not yet been finalised and not all victims and perpetrators had yet been identified. 19.     On 18 April 2011 the military prosecutor’s office relinquished jurisdiction in favour of the prosecutor’s office at the High Court of Cassation and Justice on the ground that the investigation concerned both civilians and military. 20.     On 9 March 2012 – following the opening to the public in 2010 of the classified information in the criminal investigation file – the case was re-registered under no. 270/P/2008 with a view to an investigation in the light of the recently available data. 21.     Following the entry into force of the New Code of Criminal Procedure in 2014, the jurisdiction over the case has been relinquished in favour of the military prosecutor’s office and re-registered under no.   11/P/2014. 22.     This investigation appears to be currently pending. B.     Civil proceedings concerning the applicants in applications nos.   889/15 and 1199/15 23.     On 20 December 2010, the applicants opened civil proceedings against the Romanian Ministry of Public Finances, seeking non-pecuniary damage amounting to EUR 500,000 on the basis of the provisions of Articles 998-999 of the Romanian Civil Code (valid at that date). The applicants 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 their close relative. 24.     By a judgement of 14 March 2012, the Hunedoara District Court dismissed the proceedings opened by the applicants as ill-founded, because they failed to prove that the requirements for tort liability were met. 25.     The applicants lodged an appeal against the judgement. 26.     By a judgement of 1 November 2012, the Alba Iulia Court of Appeal allowed the applicants’ appeal and quashed the judgement. The court allowed the proceedings opened by the applicants and ordered the Romanian Ministry of Public Finances to pay to the applicants EUR 5,000 as non-pecuniary damage and RON 5,000, as costs and expenses. The court held that the criminal investigation regarding the death of the applicants’ close relative was not effective and prompt as required by Article 2 of the Convention, given the lengthy period of more than 22 years from the death of their close relative and the authorities’ failure to involve the applicants in the criminal procedure. 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 applicants, in particular the extended suffering derived from the lack of an answer as to the circumstances in which the applicants’ close relative was killed and the identification and punishment of those responsible and a causal link between the unlawful deed and the damage incurred. 27.     The applicants and the Ministry of Public Finances appealed on points of law against the judgement. 28.     On 11 March 2014, the High Court of Cassation and Justice allowed the Ministry of Public Finances’ appeal on points of law and upheld the first instance court’s judgment on the dismissal of the civil proceedings. It held that it could not be considered that the investigative authorities remained passive, as they had taken decisions pursuant to the procedural legal provisions in force at the time and they had not failed to adopt any reasonable measure necessary in the interest of a complete and complex investigation. Observing that the positive obligation imposed to the States by Article 2 of the Convention was of diligence and not of result and that the basis of the civil proceedings referred to the ongoing criminal investigation in the death of the applicant’s close relative, it concluded that the authorities did not commit any illicit act causing a direct damage to the applicants. Accordingly, the applicant’s appeal on points of law was dismissed as ill-founded. COMPLAINTS 29.     Relying on Article 2 of the Convention, the applicants complain of the lack of an effective criminal investigation opened by the authorities in order to punish those responsible for the violent quashing of the anti-communist demonstrations of December 1989 in Bucharest and Brașov. 30.     Invoking Article 6 § 1 of the Convention, the applicants complain of the length of the criminal proceedings opened after the events of December   1989 in Bucharest and Brașov.     QUESTIONS TO THE PARTIES   1.     Having regard to the procedural protection of the right to life (see paragraph 104 of Salman v. Turkey [GC], no. 21986/93, ECHR 2000-VII, and paragraphs 133 - 135 of Association “21 December 1989” and Others v.   Romania, nos. 33810/07 and 18817/08, 24 May 2011), was the investigation in the present cases by the domestic authorities in breach of Article 2 of the Convention?   2.     Was the length of the criminal proceedings in the present cases in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention? APPENDIX No. Application no. and date of introduction Applicant name date of birth place of residence Represented by Particular circumstances of the application Complaints to be communicated   889/15 22/12/2014 Lenuța SIDEA 14/06/1955 Deva   Ovidiu FILIPESCU Sister of a victim killed by gunshot in Bucharest on 24 December 1989. Party in domestic file no. 11/P/2014 (former 97/P/1990).     2, 6 § 1   1199/15 22/12/2014 Victoria MAN 07/03/1927 Luduș   Ovidiu FILIPESCU Mother of a victim killed by gunshot in Bucharest on 24 December 1989. Party in domestic file no. 11/P/2014 (former 97/P/1990).     2, 6 § 1   18449/15 07/04/2015 Claudiu Ștefan FRÂNCU 10/01/1972 Brașov     Son of a victim killed by gunshot in Brașov on 23 December 1989. Party in domestic file no. 11/P/2014 (former 97/P/1990).       2, 6 § 1   18520/15 07/04/2015 Constanța FRÂNCU 01/10/1951 Brașov     Widow of a victim killed by gunshot in Brașov on 23 December 1989. Party in domestic file no.11/P/2014 (former 97/P/1990).       2, 6 § 1   22724/15 05/05/2015 Daniel ALEXE 13/06/1971 Brașov     Son of a victim killed by gunshot in Brașov on 23 December 1989. Party in domestic file no. 11/P/2014 (former 97/P/1990).       2, 6 § 1   28561/15 09/06/2015 Viorel ALEXE 19/07/1966 La Ciotat, France   Vasile TUDOR Son of a victim killed by gunshot in Brașov on 23 December 1989. Party in domestic file no. 11/P/2014 (former 97/P/1990).     2, 6 § 1   29928/15 11/06/2015 Ciprian – Gabriel ALEXE 17/04/1975 Roznov     Vasile TUDOR Son of a victim killed by gunshot in Brașov on 23 December 1989. Party in domestic file no. 11/P/2014 (former 97/P/1990).     2, 6 § 1     29946/15 09/06/2015 Cristina DONOSĂ 04/05/1969 Torino, Italy Vasile TUDOR Daughter of a victim killed by gunshot in Brașov on 23 December 1989. Party in domestic file no. 11/P/2014 (former 97/P/1990).     2, 6 § 1   29949/15 09/06/2015 Rodica ALEXE 26/03/1973 Rosta, Italy     Vasile TUDOR Daughter of a victim killed by gunshot in Brașov on 23 December 1989. Party in domestic file no. 11/P/2014 (former 97/P/1990).       2, 6 § 1