CEDH · CASELAW;CLIN;ENG — 1 décembre 2009

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Romania - 64301/01 Judgment 1.12.2009 [Section III] Article 8 Positive obligations Article 8-1 Respect for family life Refusal of courts to disinherit a murderer after his own death prevented a final conviction: violation   Article 2 Article 2-1 Life Effective investigation Effectiveness of investigation into murders in which a police officer was implicated: violation   Facts – The applicants are the father and sister of Tatiana   A. In 1993 Tatiana and her mother were killed during a fight that broke out with Tatiana’s husband, Aurel   A. On the night of the tragedy Aurel A. had been accompanied by his brother George   L., an off-duty police officer. George   L. left with his brother and took him home. Shortly afterwards Aurel   A. committed suicide, leaving two letters in which he confessed to having killed his wife and mother-in-law. George   L., acting in his capacity as a police officer, reported the incident to the police. The criminal investigation concerning Aurel   A. was discontinued on the ground that the perpetrator of the crimes had died and no one else had been involved. Following a criminal complaint lodged by the first applicant against George   L., the military prosecutor’s office opened an investigation, which ended in 1994 with a finding that there was no case to answer. Following a complaint by the applicants, the Chief Military Prosecutor’s Office attached to the Supreme Court of Justice decided to proceed with the prosecution and the investigation was resumed. In 2003, following legislative changes concerning the status of police officers, the case was referred to the public prosecutor’s office, which in 2004 found that there was no case to answer. Proceedings for the division of Tatiana’s estate had commenced in 1993. The first applicant sought to have Aurel   A.’s family disqualified from inheriting on the ground that his daughter had been killed by Aurel   A. The Romanian Civil Code (Article 655 §   1 at the material time) provided that a person convicted of murder was to be deemed unfit to inherit from the victim’s estate. Applying a strict interpretation of that provision, the Romanian courts refused to declare Aurel   A. unfit to inherit, on the ground that he had not been convicted of murder by a final court ruling, having committed suicide shortly after killing his wife. Lucian   L., Aurel   A.’s brother, was therefore able to inherit from Tatiana’s estate. Law – Article 2: In this case an investigation had been carried out on the initiative of the authorities. The public prosecutor’s office had opened an investigation in the immediate aftermath of the tragedy and a number of steps had been taken to preserve the evidence at the scene. However, despite being informed of George   L.’s involvement, the authorities had not at first opened an investigation concerning him. They had not done so until several months later, after the first applicant had lodged a formal criminal complaint. As to whether the investigation had been adequate, the Court noted a number of defects and shortcomings. Hence, the official report drawn up on the night of the tragedy had made no mention of the steps taken by the first team of investigators, nor had any explanation been given regarding their replacement; Aurel   A.’s home had not been searched until the following day; the letters which Aurel   A. had left in his flat, instead of being seized by the prosecutor, had been taken away by his brother, who had handed them over to the prosecutor’s office a few months later. In addition, George   L. had not been questioned during the first investigation, which had simply been discontinued by the prosecutor’s office because of Aurel   A.’s death. Furthermore, although George   L. had not been acting in his capacity as a police officer when the tragedy occurred in 1993, the independence of the military prosecutors who had carried out the investigation was open to question in view of the national rules in force at the time. And, although the case had been sent to the public prosecutor’s office in 2003, the latter had simply discontinued the proceedings eleven months later without undertaking any investigative measures. The intervention of the public prosecutor’s office did not suffice to offset the lack of independence of the military prosecutors, who had gathered most of the evidence in the investigation. On the subject of the applicants’ involvement in the proceedings, the Court observed that the public prosecutor had allowed the second applicant’s request for copies of the documents in the file concerning the first investigation. In addition, during the second investigation, the public prosecutor had granted her requests for a confrontation between George   L. and the other witnesses and for a reconstruction of the events. Finally, it was clear that there had been delays in the conduct of the investigation into George   L.’s role in the events. The Court noted that the investigation had lasted for over eleven years, which in itself constituted an unreasonable length of time. It also observed a lack of diligence on the part of the prosecutors handling the case. In sum, the proceedings concerning the role played by the police officer George   L. in the events in 1993 which had culminated in the death of the applicants’ two relatives had not amounted to a speedy and effective investigation. Conclusion : violation (unanimously). Article 8: In the instant case the first applicant complained in essence of the fact that his son-in-law’s brother, Lucian   L., had inherited from his daughter’s estate. The domestic courts had refused to declare the applicant’s son-in-law, Aurel   A., unfit to inherit, on the ground that he had not been convicted of murder by a final court ruling. As a result, his brother had been able to claim his share of the estate and inherit from the first applicant’s daughter. The Court considered that requiring a final court conviction for murder before declaring a person unfit to inherit could be justified on grounds of protection of the rights and freedoms of others, one of the legitimate aims contemplated by Article 8 §   2 of the Convention. In principle, a final conviction offered a guarantee of legal certainty compared with other possible findings of guilt in relation to the person supposedly unfit to inherit; this was in society’s interests. In determining whether or not the domestic courts had struck a fair balance between the competing interests, particular attention had to be paid to the scope of the rule laid down by the Civil Code concerning fitness to inherit and, more specifically, to how it had been applied in the instant case. In view of the particular circumstances of the case, the interpretation of the relevant provision of the Civil Code had been unduly restrictive, to the detriment of the first applicant’s family life. By not taking into consideration the public prosecutor’s finding that Aurel   A. had killed Tatiana   A., the perpetrator’s confession and the family’s acknowledgment of his guilt, the courts had gone beyond what was necessary to ensure adherence to the principle of legal certainty. The Court deemed it unacceptable that, following a person’s death, the unlawfulness of his or her actions should remain without effect. Admittedly, it was right that the principles governing the criminal responsibility of persons suspected of committing an offence punishable under criminal law, and their application by the domestic authorities, should have acted as a bar to continuing to investigate Aurel   A.’s responsibility after his death, once it had been decided to discontinue the proceedings. The Court could not call into question the fundamental principle of domestic criminal law whereby criminal responsibility was personal and non‑transferable. Nevertheless, formal acknowledgement by the authorities that the acts in question had been unlawful, before they decided to discontinue the proceedings on account of the death of the person concerned, would send out a clear message to the public that such acts would not be tolerated by the authorities and at the same time serve as a basis for possible civil claims by those affected. In order to ensure respect for the first applicant’s family life the particular, not to say exceptional, circumstances of the case should have been taken into account so as to prevent the principles articulated in Article 655 §   1 of the Civil Code from being interpreted in mechanistic fashion. In view of the highly unusual situation in this case, and bearing in mind the narrow margin of appreciation left to the respondent State in matters concerning family life, a fair balance had not been struck between the interests of Aurel   A.’s legal successor on the one hand and those of the first applicant on the other. The Court nevertheless noted with interest the recent change in the legislation in relation to the clause in the new Romanian Civil Code concerning fitness to inherit. Conclusion : violation (unanimously). Article 41: EUR 15,000 to the first applicant and EUR   8,000 to the second applicant in respect non-pecuniary damage.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes