THIRD SECTION

DECISION

Application no . 35279/10 Rostislav Ivanovich MELNICHUK and Alla Rostislavovna LYANA against Romania

The European Court of Human Rights (Third Section), sitting on 12 June 2012 as a Chamber composed of:

Josep Casadevall , President, Alvina Gyulumyan , Egbert Myjer , Ján Šikuta , Ineta Ziemele , Luis López Guerra , Kristina Pardalos , judges, Nona Tsotsoria , substitute judge, and Marialena Tsirli , Deputy Section Registrar ,

Having deliberated, decides as follows:

THE FACTS

1. The applicants, Mr Rostislav Ivanovich Melnichuk (“the first applicant”) and Ms Alla Rostislavovna Lyana (“the second applicant”), are Ukrainian nationals who were born in 1939 and 1964 respectively and live in Rivne .

A. The circumstances of the case

2. The facts of the case, as submitted by the applicants and as revealed by the factual information submitted by the respondent Government, may be summarised as follows.

1. The events of 24 December 1989

3. On 24 December 1989, the first applicant and his wife, N.S.M., the mother of the second applicant, both citizens of USSR at the time, were driving through southern Romania, heading home after a trip to the Socialist Federal Republic of Yugoslavia. They were driving in a column of five cars, all belonging to Soviet citizens. The first applicant, his wife and a third person were driving in the second car in the column.

4. At the same time, a Romanian army unit had been notified that a column of foreign cars was driving from Drobeta Turnu Severin towards Craiova . At the time of the events the totalitarian regime had just been toppled and there were persistent news reports that terrorists were trying to reinstate the regime.

5. Suspecting that the foreign cars belonged to the so called terrorists, a team of soldiers was dispatched to block the road in the commune of Bră d eşti . The unit was led by Lieutenant Colonel S.F. The road was blocked with two armoured vans, between which only one car could pass.

6. When the column of cars reached the blockade, the soldiers asked the passengers several times, in Romanian, to get out of the cars and surrender. As the tourists did not understand what was happening, they tried to turn back the cars, at which point the officer ordered the military staff to open fire. The first applicant submitted that the firing had started without any prior warning. The passengers in the cars started screaming in Russian that they were Soviet tourists. After a brief pause, the soldiers started firing again. The first applicant ’ s wife was shot in the head and the passenger sitting behind her was wounded by a bullet. The persons who were not wounded started to run away from the cars and tried to hide by the side of the road. At that moment a third round of shooting started. Then the shooting stopped and the soldiers approached the cars. The first applicant tried to explain that they were tourists. After a while, the first applicant and his wife were taken to a nearby hospital. The first applicant submits that he was called a terrorist by the Romanian soldiers, who pushed him around.

7. N.S.M . was operated on the same day, but then she went into a coma. On 9 January 1990 she was transferred to a hospital in Bucharest , where she eventually died on 8 February 1990. The medical certificate issued in respect of her death stated that it had been caused by the wounds inflicted by the shooting.

8. The second applicant travelled to Bucharest to bring back her mother ’ s body. However, the applicants were prevented for several days from collecting the body of N.M.S. because the morgue staff were on strike at that time. They were eventually able to collect the body on 12 February 1990.

9. From the investigation carried out by the Romanian authorities it appears that several other persons from the car column were wounded: N.G.S. (who needed 8-10 days ’ medical care), A.T.C. (25 days ’ medical care), I.A.L. (10-12 days ’ medical care), S.F.D. (25-30 days ’ medical care), S.K., and B.M.K., who subsequently die d from his wounds on 2 February 1990 in a hospital in Belgrade.

2. Criminal inve stigation into the events at Bră d e şti on 24 D ecembe 1989

10. Following the above-mentioned events, the Military Prosecutor ’ s Office in Craiova opened a criminal investigation under file no. 211/P/1990.

11. It appears from the documents submitted by the respondent Government that during 1990 several inves tigative measures were taken. A technical report was drawn up evaluating the damage to the cars involved in the incident. Medical certificates were prepared and handed over to the investigation authorities in respect of the wounds inflicted on the tourists. No such report was prepared in respect of the first applicant.

Statements were taken from all the military staff involved in the incident and the army unit which had dispatched the team of soldiers to Br ă d e ş ti . With the assistance of the USSR Embassy, all the victims were interviewed by a Soviet prosecutor and their statements were handed over to the Romanian authorities. In the statement given by the first applicant, he indicated that he had also been wounded but that his wound was insignificant.

12. On the basis of this evidence, by a decision of 14 August 1991, the prosecutor decided not to institute any criminal proceedings on the ground that the shooting had taken place as the result of a fortuitous circumstance: the soldiers had been led to believe that the tourists were terrorists, so that when the tourists failed to stop their cars it gave the appearance of imminent danger.

13. The above-mentioned decision was automatically subject to review by the relevant Section of the Military Prosecutor ’ s Office attached to the High Court of Cassation and Justice. In a decision of 30 May 1994, the Prosecutor ’ s Office quashed the 1991 decision not to institute criminal proceedings. In so ruling, the prosecutor found that there had been no justification for giving the firing order, taking into account that the tourists were not armed and they did not present any immediate danger. It was emphasised that the second round of shooting had taken place when the cars were stationary and the passengers were trying to hide in the surrounding environment. He considered that the firing order constituted a criminal act and that the fear that the soldiers might have experienced could not amount to a circumstance capable of removing criminal liability. It was therefore ordered to initiate a criminal investigation against Lieutenant Colonel S.F. for aggravated murder. The file was sent back to the Military Prosecutor ’ s Office in Craiova .

14. On 13 January 1997, the Military Prosecutor ’ s Office in Craiova found that it was not competent to decide on the case and referred it to the Military Prosecutor ’ s Office attached to the Military County Court.

15. It appears from the case file that in 1997 several investigative measures were taken in respect of Lieutenant Colonel S.F.: he was subjected to a psychiatric evaluation and he gave several statements.

16. Upon considering a complaint lodged by Lieutenant Colonel S.F., the Military Prosecutor ’ s Office attached to the High Court of Cassation and Justice, by a decision of 12 August 1998, ordered the partial annulment of the decision of 13 January 1997. It was considered that the criminal investigation should not have been limited to Lieutenant Colonel S.F. as other persons might also have been involved. The prosecutor indicated that the criminal investigation needed to elucidate all the circumstances of the events and, on the basis of the results thus obtained, criminal proceedings should be initiated against all relevant persons. It was therefore ordered that the criminal investigation should be in rem. It was further indicated that the decision should be communicated to all interested parties.

17. The investigation ended on 13 January 2005 when the Prosecutor ’ s Office attached to the Military County Court ordered the discontinuance of the criminal investigation on the ground that the criminal liability was time-barred, taking into account that the investigation was in rem.

18. A.C. and K.C. (two of the passengers involved in the events) lodged a criminal complaint against this decision with the higher p rosecutor. A new case file (no. 43/P/2007) was constituted by the relevant Section of the Military Prosecutor ’ s Office attached to the High Court of Cassation and Justice .

19. By a decision of 4 April 2007, the Chief Military Prosecutor quashed the prosecutor ’ s order of 13 January 2005, indicating that given the fact that in 1994 criminal proceedings had been instituted against S.F. and several procedural acts had been taken in connection with them, the running of the statutory time-limit had been interrupted and therefore criminal liability was not time-barred. It was also decided that the investigation file should be attached to the main criminal investigati on file concerning the Decembe r 1989 Revolution events, namely, file no . 97/P/1990.

20. On 18 December 2010 the military prosecutor in charge of the investigation decided to discontinue the proceedings in respect of the events that had taken place on 24 December 1989 in Bră d eşti .

21. On 15 April 2011, the aforesaid decision was also quashed and a new case was registered under no. 706/P/2011 with the Prosecutor ’ s Office attached to the High Court of Cassation and Justice.

22. At present, the investigations are still pending and according to the information submitted by the Government a final conclusion regarding the events is due in the near future.

23. The decisions of 18 December 2010 and 15 April 2011 are not available in the case file.

24. From the information submitted by the Government, it appears that at the beginning of the investigation, communication with the victims, including the applicants, was carried out through the Soviet Embassy.

25. The various decisions taken throughout the proceedings were not communicated to the applicants.

26. The applicants submitted that they had found out from newspapers that the investigation had been closed without anyone being punished. They further submitted that they had made attempts to find out more information about the outcome of the investigation from both the Romanian and the Ukrainian authorities, but without success.

B. Relevant domestic law and practice

27. The relevant domestic legislation concerning criminal investigations is quoted in the judgment in the case of Association 21 December 1989 and Others v. Romania (nos. 33810/07 and 18817/08 , §§ 95-100, 24 May 2011).

COMPLAINTS

28. The applicants complain under Article 2 of the Convention that a close relative of theirs was shot by Romanian soldiers and she subsequently died.

29. They complain under Article 3 that the first applicant was subjected to torture and inhuman treatment on 24 December 1989, as he was shot at and the soldiers called him a terrorist and pushed him around.

30. They complain under Article 2 of Protocol No . 4 to the Convention that on 24 December 1989 the first applicant ’ s freedom of movement was unlawfully restricted.

31. They complain under Article 6 § 1 of the Convention that no one has been punished for the killing of their close relative and that the criminal investigation did not lead to any concrete results.

32. They claim a violation of Articles 1 and 17 of the Convention.

THE LAW

A. Complaints under Articles 2 and 6 § 1 of the Convention

33 . The applicants complain that a close relative of theirs died as a result of unlawful shooting by Romanian soldiers. They further complain that the criminal investigation into the violent death of their relative did not lead to the punishment of the guilty persons. They rely on Articles 2 and 6 § 1 of the Convention.

34 . Having regard to the facts of the present case, and following the example of the case of Åžandru and Others v. Romania (no. 22465/03, §§ 51 ‑ 54, 8 December 2009), the Court considers that the present case must be examined solely under Article 2. The relevant provision of the Article reads as follows:

“Everyone ’ s right to life shall be protected by law. ...”

35 . To the extent that the applicants ’ complaint concerns the substantive aspect of Article 2, the Court finds that it is obviously based on facts which occurred and ended before 20 June 1994 and is therefore incompatible ratione temporis with the provisions of the Convention w ithin the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4.

36 . As regards the complaint under the procedural head of Article 2 of the Convention, the Court considers that it cannot determine the admissibility of this complaint on the basis of the case file, and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

B. Remaining complaints

37 . The applicants raised further complaints under Articles 1, 3 and 17 of the Convention and under Article 2 of Protocol No . 4 to the Convention.

38 . In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that none of the other complaints raised by the applicants discloses any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

39 . It follows that these complaints must be rejected in accordance with Article 35 §§ 1, 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicants ’ complaint concerning the alleged lack of an effective investigation into the shooting and subsequent death of their close relative ;

Declares the remainder of the application inadmissible.

Marialena Tsirli Josep Casadevall Deputy Registrar President