Information Note on the Court’s case-law 241

June 2020

A and B v. Romania - 48442/16 and 48831/16

Judgment 2.6.2020 [Section IV]

Article 2

Positive obligations

Authorities’ efforts sufficient, despite some delays and omissions, in view of obstructive behaviour of witnesses placed under protection: no violation

Facts – The applicants, witnesses in a high profile anti-corruption case, were included in a witness pro tection programme. They complained about the organisation of that programme, arguing that it was inefficient.

Law – Article 2 (substantive aspect): The Court accepted that there had indeed been a serious threat of real and immediate risk to the applicants’ life, physical integrity and liberty at the material time. Having established that the authorities knew or ought to have known that there was a real and immediate risk to the applicants’ life, the question was whether they had done all that could have bee n reasonably expected of them to avoid it.

The authorities had placed the applicants under protection as soon as a risk had been identified. The initial protection order had given rise to a series of measures being taken to protect the applicants: an actio n plan had been adopted the same day, the parties concerned had entered into negotiations to set the details of that protection, and two teams had been assigned to protect the applicants.

There had then been a number of delays and the Court was concerned that a matter of such importance and urgency had been left unresolved by the authorities for such long periods of time, amounting to a total of more than one year and four months, from when the risk had first been identified to when the applicants had been formally included in the programme. That said, the applicants had not been left without protection during that time, even if that protection had at least in the beginning been mostly improvised, in the absence of regulations. The inevitable deficiencies h ad, however, been corrected by the authorities.  Moreover, no direct attack against the applicants had taken place during that time.

The police officers assigned to protect the applicants had received comparable, high risk assignments in the past. However, their past experience could not make up for the absence of clear instructions from their superiors concerning the scope and aim of the mission in question. The Court could not but note that several incidents pointed to a lack of adequate preparation on th e part of the police officers on duty. They had sometimes been found to be unarmed or without uniforms, had left the post before the next team arrived, had failed to report, or had simply lost the liaison file which contained sensitive data concerning the applicants. Those omissions risked compromising the applicants’ protection. However, they had been taken seriously by the authorities, who had investigated and when necessary had reprimanded those responsible.

Notwithstanding the authorities’ prompt respon se to correct the failures identified, the Court accepted that they must have contributed to the escalation of the conflicts and mistrust between the applicants and the police. They did not, however, justify the applicants’ provocative behaviour and repeat ed disregard of their own responsibilities towards their protection. Domestic law imposed on protected witnesses a duty to cooperate with the authorities and abstain from any action that might compromise the safety of the mission. Those duties were clearly set out in the protection protocols to which the applicants had eventually given their consent. Failure to comply with the obligations undertaken by signing the protocols could result in exclusion from the programme. It could therefore be accepted that th e applicants had been fully aware of their duty to cooperate with the authorities.

The applicants had repeatedly failed to comply with their obligations and had breached the protection protocols. They had been uncooperative and had very often exhibited ina ppropriate behaviour towards the police officers. They had made considerable efforts to elude the protection measures and obstruct the work of the officers assigned to protect them. They had refused to cooperate with the protection teams and had used offen sive language towards the police. The applicants had also allegedly made unattainable demands to the authorities concerning the obligation to find them new jobs and had refused to compromise.  Moreover, the applicants, through their presence on social medi a and on television, had risked compromising their protected witness status.

Furthermore, the applicants had refused the offer of relocation within Romania. As for their request to have their identities changed and be relocated abroad, the High Court of Cassation and Justice had dismissed them after careful examination and had prov ided reasons as to why those measures would not be feasible in their situation. In complete disregard of that court’s decision and of their obligation to comply with the protection protocols, the applicants had decided unilaterally to change their residenc e abroad. That act, in practice, had effectively ended their protection and had potentially exposed them to a serious risk to their lives and physical integrity. It appeared, however, that despite the additional difficulties raised by that new situation cr eated by the applicants’ actions, the authorities had not withdrawn protection but had maintained contact with them abroad and had continued to offer them financial support.

The authorities had made efforts to continue the protection, despite the applicant s’ lack of cooperation, instead of withdrawing them from the witness protection programme, an option that had been provided for by law. Their willingness to ensure the applicants’ protection and find alternative solutions had not weakened despite the appli cants’ lack of cooperation, breach of the rules and provocative behaviour. The authorities had done what could reasonably be expected of them to protect the applicants from the alleged risk to their lives.

Conclusion : no violation (unanimously).

(See also Osman v. the United Kingdom , 23452/94 , 28 October 1998, and R.R. and Others v. Hungary , 19400/11, 4 December 2012, Information Note 158 )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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