Information Note on the Court’s case-law No. 177

August-September 2014

Mocanu and Others v. Romania [GC] - 45886/07, 32431/08 and 10865/09

Judgment 17.9.2014 [GC]

Article 2

Article 2-1

Effective investigation

Lack of investigation into death of man during June 1990 demonstrations against Romanian regime: violation

Article 3

Effective investigation

Lack of effective investigation into arrest and ill-treatment of man during June 1990 demonstrations against Romani an regime: violation

Article 35

Article 35-1

Six month period

Inaction on part of applicant who took eleven years to make complaint to domestic authorities: preliminary objection dismissed

Article 35-3

Ratione temporis

Four years between the triggering eve nt and the Convention’s entry into force in respect of Romania: preliminary objection dismissed

Facts – In June 1990 the Romanian Government undertook to end the occupation, of several weeks’ duration, of University Square by demonstrators protesting about the regime then in power. On 13 June 1990 the security forces intervened and arrested numerous demonstrators; this had the effect of increasing the demonstrations. While the army was sent into the most sensitive areas, shots were fired from inside the Min istry of the Interior, which was surrounded by demonstrators, striking Mr Mocanu, the first applicant’s husband, in the head and resulting in his death. During the evening Mr Stoica (the second applicant) and some other people were arrested and ill-treated by uniformed police officers and men in civilian clothing inside the headquarters of the State television service. The criminal investigation into this crackdown began in 1990 with a very large number of individual files, which were subsequently joined an d transferred to the military prosecutor’s office in 1997.

On 18 June 2001, that is more than eleven years after the events complained of, the second applicant filed a criminal complaint with a prosecutor at the military section of the prosecutor’s office at the Supreme Court of Justice. The investigation opened into the ill-treatment inflicted on Mr Stoica on 13 June 1990 was closed by a decision not to bring a prosecution, dated 17 June 2009, and upheld by a judgment of the High Court of Cassation and Jus tice of 9 March 2011.

The criminal proceedings into the unlawful killing of the first applicant’s husband were still pending when the European Court’s judgment was delivered.

By a judgment of 13 November 2012 (see Information Note 157 ), a Chamber of the Court held unanimously that there had been a violation of the procedural aspect of Article 2 of the Convention in respect of the first applicant and by five votes to two that th ere had been no violation of the procedural aspect of Article 3 in respect of the second applicant.

Law – Article 35 § 3: The respondent Government made no plea before the Grand Chamber as to the Court’s lack of jurisdiction ratione temporis . However, they submitted that the Court could examine the complaints brought before it only in so far as they related to the period after 20 June 1994, the date on which the Convention entered into force in respect of Romania.

The Chamber had declared that it had jurisd iction ratione temporis to examine the allegation of a procedural violation of Articles 2 and 3 of the Convention, dismissing the objection which had been raised by the Government in this connection with regard only to the application by the second applica nt.

The Grand Chamber held that the complaints in respect of the procedural aspect of Articles 2 and 3 of the Convention concerned the investigation into the armed repression conducted on 13 and 14 June 1990 against the anti-government demonstrations, and that this repression had cost the life of the first applicant’s husband and interfered with the second applicant’s physical integrity. The investigation had begun in 1990, shortly after those events, giving rise, inter alia , to investigative measures, the primary aim of which had been to identify the victims who had been killed by gunfire, including the first applicant’s husband.

Four years had passed between the triggering event and the Convention’s entry into force in respect of Romania, on 20 June 1994. This lapse of time was relatively short. It was less than ten years and less than the time periods in issue in similar cases examined by the Court*. In addition, the majority of the proceedings and the most important procedural measures had been carried ou t after the critical date.

Consequently, the Court found that it had jurisdiction ratione temporis to examine the complaints raised by the first and second applicants under the procedural aspect of Articles 2 and 3 of the Convention, in so far as those com plaints related to the criminal investigation conducted in the present case after the entry into force of the Convention in respect of Romania on 20 June 1994.

Article 35 § 1: The Chamber had considered that the objection – alleging that the second applica nt had lodged his criminal complaint with the relevant authorities out of time – should be joined to the examination of the merits of the complaint alleging a violation of the procedural aspect of Article 3 of the Convention, and had declared the complaint admissible.

The Grand Chamber considered that the issue of the diligence incumbent on the second applicant was closely linked to that of any tardiness in lodging a criminal complaint within the domestic legal system. Taken together, these arguments could be regarded a s an objection alleging a failure to comply with the six-month time-limit under Article 35 § 1 of the Convention.

The second applicant’s vulnerability and his feeling of powerlessness, which he shared with numerous other victims who, like him, had waited f or many years before lodging a complaint, amounted to a plausible and acceptable explanation for his inactivity from 1990 to 2001. The applicant had not therefore failed in his duty of diligence in this respect.

Moreover, several elements indicated that th e authorities had known or could have discovered without any real difficulties at least some of the names of the victims of the abuses committed on 13 June 1990 and over the following night. In those circumstances, it could not be concluded that the second applicant’s delay in lodging his complaint had been capable of undermining the effectiveness of the investigation. In any event, the applicant’s complaint had been added to an investigation case file which concerned a large number of victims of the events of 13 to 15 June 1990 and the decision of 29 April 2008 by the military section of the prosecutor’s office had included the names of more than a thousand victims. Thus, the investigation had been undertaken in entirely exceptional circumstances.

Moreover, from 2001 onwards, there had been meaningful contact between the second applicant and the authorities with regard to the former’s complaint and his requests for information, which he had submitted annually by going to the prosecutor’s office in person to enquire about progress in the investigation. In addition, there had been tangible indications that the investigation was progressing.

Regard being had to the developments in the investigation subsequent to 2001, its scope and its complexity, the applicant, after having lodged his complaint with the domestic authorities, could legitimately have believed that the investigation was effective and could reasonably have awaited its outcome, so long as there was a realistic possibility that the investigative measu res were moving forward.

The second applicant had lodged his application with the Court on 25 June 2008, more than seven years after lodging his criminal complaint with the prosecuting authorities. The investigation was still pending at the time, and investigative steps had been t aken. For the reasons indicated above, which remained valid at least until the time when the applicant had lodged his application before the Court, he could not be criticised for having waited too long. Moreover, the final domestic decision in the applican t’s case had been the judgment of 9 March 2011. Thus, the application had not been lodged out of time.

Conclusion : preliminary objection rejected (fourteen votes to three).

Article 2 and Article 3 ( procedural aspect ): A criminal investigation had been open ed of the authorities’ own motion shortly after the events of June 1990. That investigation, which from the outset had concerned the death by gunfire of the first applicant’s husband and other persons, was still pending in respect of the first applicant. T he part of the investigation concerning the second applicant and implicating 37 high-ranking civilian and military officials had been terminated by a judgment delivered on 9 March 2011 by the High Court of Cassation and Justice.

The Court’s jurisdiction ra tione temporis permitted it to consider only that part of the investigation which had occurred after 20 June 1994, the date on which the Convention entered into force in respect of Romania.

With regard to the question of independence, the investigation had been entrusted to military prosecutors who, like the accused, were officers in a relationship of subordination within the military hierarchy, a finding which had already led the Court to conclude that there had been a violation of the procedural aspect of Article 2 and Article 3 of the Convention in previous cases against Romania.

With regard to the expedition and adequacy of the investigation, the investigation concerning the first applicant had been pending for more than 23 years, and for more than 19 ye ars since the Convention was ratified by Romania. In respect of the second applicant, the investigation had been terminated by a judgment delivered on 9 March 2011, 21 years after the opening of the investigation and 10 years after the official lodging of the second applicant’s complaint and its joinder to the investigation case file. While acknowledging that the case was indisputably complex, the Court considered that the political and societal stakes referred to by the Government could not justify such a long period. On the contrary, the importance of those stakes for Romanian society should have led the authorities to deal with the case promptly and without delay in order to avoid any appearance of collusion in or tolerance of unlawful acts.

Yet lengthy p eriods of inactivity had occurred in the investigation concerning the first applicant. In addition, the national authorities themselves had found numerous shortcomings in the investigation.

Furthermore, the investigation into the violence inflicted on the second applicant had been terminated by a decision of 17 June 2009 not to bring a prosecution, which was upheld by the judgment of 9 March 2011, that is, 10 years after he lodged a complaint. However, in spite of the length of time involved and the investi gative acts carried out in respect of the second applicant, none of those decisions had succeeded in establishing the circumstances of the ill-treatment which the applicant and other persons claimed to have sustained at the State television headquarters. T his branch of the investigation had been terminated essentially on account of the statutory limitation of criminal liability. However, the procedural obligations arising under Articles 2 and 3 of the Convention could hardly be considered to have been met w here an investigation was terminated, as in the present case, through statutory limitation of criminal liability resulting from the authorities’ inactivity.

It appeared that the authorities responsible for the investigation had not taken all the measures r easonably capable of leading to the identification and punishment of those responsible.

With regard to the obligation to involve victims’ relatives in the proceedings, the first applicant had not been informed of progress in the investigation prior to the decision of 18 May 2000 committing for trial the persons accused of killing her husband. Moreover, she had been questioned by the prosecutor for the first time on 14 February 2007, almost 17 years after the events, and, following the High Court of Cassatio n and Justice’s judgment of 17 December 2007, she had no longer been informed about developments in the investigation. The Court was not therefore persuaded that her interests in participating in the investigation had been sufficiently protected.

Thus, In the light of the foregoing, the first applicant had not had the benefit of an effective investigation as required by Article 2 of the Convention, and the second applicant had also been deprived of an effective investigation for the purposes of Article 3.

C onclusions : violation of Article 2 – procedural aspect (sixteen votes to one); violation of Article 3 – procedural aspect (fourteen votes to three).

Article 41: EUR 30,000 for the first applicant and EUR 15,000 for the second applicant in respect of non-pe cuniary damage.

The Court also concluded, unanimously, that there had been a violation of Article 6 § 1 in respect of the third applicant, the Association “21 December 1989”, an association bringing together individuals who had been injured during the viol ent crackdown on anti-government demonstrations which took place in December 1989 and the relatives of persons who died during those events, finding that the length of the impugned proceedings had been excessive.

(See also Janowiec and Others v. Russia [GC ], 55508/07 and 29520/09, 21 October 2013, Information Note 167 )

* Among other cases, Åžandru and Others v. Romania , 22465/03, 8 December 2009, Information Note 125 .

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

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