Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 25496/94

by Marian ROMANESCU

against Romania

The European Commission of Human Rights (Second Chamber) sitting

in private on 5 April 1995, the following members being present:

Mr. H. DANELIUS, President

Mrs. G.H. THUNE

MM. G. JÖRUNDSSON

S. TRECHSEL

H.G. SCHERMERS

F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

C. BÎRSAN

Mr. K. ROGGE, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 12 October 1993

by Marian Romanescu against Romania and registered on 26 October 1994

under file No. 25496/94;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The facts, as submitted by the applicant, may be summarised as

follows:

The applicant, a Romanian citizen born in 1948, is a retired

officer, residing at Bucharest.

The applicant used to work for the special forces for the

security of the State (Securitate). Together with his unit, a sub-unit

of the special anti-terrorist unit (USLA), he took part in the events

commencing in Bucharest on 21 December 1989 and leading to the fall of

the Ceausescu dictatorship on 22 December 1989. During these events,

lasting until the end of December, clashes took place between civil

demonstrators, the army, and Securitate forces.

After his work in the unit, the applicant was arrested by army

forces in the evening of 22 December 1989. In the morning of

23 December 1989 he was released. On 25 December 1989, he presented

himself to his unit, where he was immediately put under arrest.

During his arrest, lasting 40 days, the applicant was questioned

by his colleagues, who feared a betrayal, about his activities between

22 December and 25 December 1989. As a result of this inquiry, he

suffered a depression. After his release, the applicant was confined

to the Bucharest Military Hospital, where he was found to have "anxious

neurasthenia". As a result, his retirement was proposed on grounds of

health.

The applicant, who contested this decision, was again confined

to the Bucharest Military Hospital, where allegedly strong medicines

were groundlessly administered to him. Although a special civil

medical commission issued a certificate declaring the applicant sane,

the Central Military Commission for Medical Expertise declared on

31 July 1990 that the applicant was suffering from "evolving paranoid

psychosis". On 5 November 1990, the Director of the Romanian Service

for Information (formerly Securitate) decided to place the applicant

on a reserve list.

On 29 April 1990 the applicant filed a criminal report with the

Military Prosecutor requesting punishment of various officials

allegedly responsible for his trauma.

On 6 April 1993, as well as on 30 May 1994, the Bucharest

Forensic Institute issued, at the Military Prosecutor's request,

a certificate establishing the applicant's sanity.

As from July 1993 the applicant no longer received his retirement

pension, as he refused to submit himself to a new examination by

military doctors.

On 2 December 1993 the Military Prosecutor's Office, while

accepting that the unit's commander was responsible for the applicant's

deprivation of liberty and his injuries, discontinued the criminal

proceedings against the commander as he had died in the meantime.

In December 1993 the applicant brought an action for compensation

before the Bucharest District Court against the Romanian Service for

Information and the Ministry for Defence. He also requested the

revocation of the retirement decision and the junction of these

proceedings with the criminal investigations carried out by the

Military Prosecutor.

On 21 January 1994 the applicant complained to the Bucharest

District Court about the certificate of 31 July 1990 which had declared

him insane and therefore unable to continue his military activity. He

also contested the retirement decision of 5 November 1990.

On 19 May 1994 the applicant inquired with the Military

Prosecutor about the state of the proceedings.

On 23 June 1994 the Military Prosecutor informed the applicant

that it transpired from the investigations that on 22 and

23 December 1989 the applicant himself had asked for protection by a

military unit.

On 24 June 1994 the Bucharest District Court requested the

applicant to submit himself to a new medical examination by military

doctors, in order to determine the lawfulness of the retirement

decision.

On 7 October 1994 the applicant requested the suspension of the

proceedings concerning compensation and the annulment of the retirement

decision, pending the investigations before the Military Prosecutor

concerning detention and alleged inhuman treatment. He also informed

the Bucharest District Court that he refused to submit himself to a

medical examination by military doctors, as he contested their

impartiality, and as criminal investigations concerning the previous

examinations were still pending.

COMPLAINTS

The applicant complains :

- under Article 2 of the Convention that during his detention he

was threatened with death by his unit's command;

- under Article 3 of the Convention of inhuman and degrading

treatment and torture during his arrest and also during his stay in

hospital;

- under Article 5 para. 1 of the Convention that during 40 days he

was unlawfully detained by order of his unit's command;

- under Article 5 para. 5 of the Convention that the Ministry of

Defence and the Romanian Service for Information did not award him

compensation for his unlawful detention;

- under Article 6 of the Convention that the Bucharest District

Court, in order to be able to decide on the lawfulness of the

retirement decision, held on 24 June 1994 that the applicant should

submit himself to a military medical commission, although criminal

investigations were pending against those doctors who had issued an

incapacity certificate;

- that "for four years he has been living a drama" resulting from

"the lack of interest of the authorities" in elucidating his case.

THE LAW

1. The applicant raises various complaints under Articles 2, 3 and

5 para. 1 (Art. 2, 3, 5-1) of the Convention about inhuman treatment

and torture, and unlawful deprivation of liberty.

However, the Commission notes that Romania ratified the

Convention on 20 June 1994 and it recalls that the Convention only

governs, for each Contracting Party, facts subsequent to its entry into

force with respect to that Party. The Commission therefore finds that

the above complaints relating to a period before 20 June 1994 are

incompatible with the provisions of the Convention ratione temporis and

must be rejected according to Article 27 para. 2 (Art. 27-2) of the

Convention.

2. The applicant complains under Article 5 para. 5 (Art. 5-5) of the

Convention that the Ministry of Defence and the Romanian Service for

Information refuse to award him compensation for his unlawful

detention. He also complains under Article 6 (Art. 6) of the

Convention that the Bucharest District Court has asked him to submit

to a medical examination carried out by military doctors, although

criminal proceedings are pending against these military doctors.

However, the Commission notes that the proceedings before the

Bucharest District Court which the applicant instituted in order to

obtain compensation are still pending. The complaint is therefore

premature.

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

3. The applicant complains that "for four years" he has been living

"a drama resulting from the lack of interest of the authorities" in

elucidating his case.

The Commission interprets the applicant's complaints as relating

to the length of the proceedings before the Bucharest District Court

concerning compensation for his confinement and the annulment of his

retirement decision as well as his allegations of torture and illegal

deprivation of liberty.

The Commission recalls that Article 6 (Art. 6) does not apply to

proceedings instituted against third parties unless the determination

of civil rights and obligations is at stake (cf. Eur. Court H.R., the

Moreira de Azevedo judgment of 23 October 1990, Series A no. 189,

p. 17, para. 67).

In the present case, the solution in the proceedings before the

Bucharest District Court concerning compensation will depend on the

investigations carried out by the Military Prosecutor in the

proceedings concerning the applicant's detention and inhuman treatment.

The Commission is therefore competent to examine under Article

6 para. 1 (Art. 6-1) the reasonableness of the length of the

compensation proceedings before the Bucharest District Court as well

as the proceedings instituted against various officials.

The Commission further notes that the applicant instituted

criminal proceedings against third persons on 29 April 1990. However,

these proceedings only become relevant under Article 6 para. 1

(Art. 6-1) of the Convention as from December 1993, i.e. the date when

the applicant instituted proceedings for compensation before the

Bucharest District Court. In each case, however, these proceedings

commenced before 20 June 1994, which is the date when Romania ratified

the Convention and recognised the competence of the Commission to

receive individual applications. The Commission is therefore not

competent ratione temporis to consider the length of the proceedings

prior to this date.

Thus, the period to be examined under Article 6 para. 1

(Art. 6-1) of the Convention commenced on the date of ratification of

the Convention by Romania, which is 20 June 1994. They have,

therefore, currently lasted approximately 10 months.

Nevertheless, where the Commission by reason of its competence

ratione temporis can only examine part of the proceedings, it can still

take into account, in order to assess the length, the stage reached in

the proceedings at the beginning of the period under consideration (see

No. 7984/77, dec. 11.7.79, D.R. 16, p. 92; Eur. Court H.R., Foti

judgment of 10 December 1982, Series A no. 56, p. 18, para. 53).

In the present case, however, upon ratification of the Convention by

Romania on 20 June 1994, the proceedings were still at an early stage,

as the action for compensation had only been instituted in December

1993. When examining the reasonableness of the length of the

proceedings, the Commission will consider the circumstances of the case

in the light of the criteria laid down by the Convention organs' case-

law. In this respect, the complexity of the case, the attitude of the

applicant and the conduct of the case by the judicial authorities must

be taken into account (see, inter alia, Eur. Court H.R., Scopelliti

judgment of 23 November 1993, Series A no. 278, p. 8, para. 19).

As regards the proceedings before the Bucharest District Court

concerning compensation, the Commission considers that these

proceedings are of a certain complexity as they may raise difficulties

when establishing the facts. On the other hand, hearings were already

held on 24 June 1994 and 7 October 1994. Moreover, the applicant

himself requested the suspension of the proceedings.

The proceedings instituted against the senior officers of the

Ministry of Defence and of the Romanian Service for Information are in

the Commission's opinion also of a certain complexity as they concern

various officials in different governmental departments. Moreover, on

23 June 1994 the Military Prosecutor informed the applicant about the

state of the proceedings.

The Commission considers that, in the circumstances, neither the

compensation proceedings before the Bucharest District Court nor the

criminal proceedings instituted against government officials have so

far exceeded the "reasonable time" within the meaning of Article 6

para. 1 (Art. 6-1) of the Convention.

It follows that the remainder of the application is also

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

For these reasons, the Commission unanimously

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (H. DANELIUS)

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