THIRD SECTION

Application no. 34160/09 Petre DOBRE and O thers against Romania lodged on 16 June 2009

STATEMENT OF FACTS

1. The applicants, Mr Petre Dobre , Mrs Stela Iotcovici , Mrs Rodica Iezdici , Mrs Victoria Balogh , Mr Ioan Tomesc , Mr Virgil Prodan , Mrs Daniela- Oxana Radu and Mr Vasile -Adrian Drǎgulescu are Romanian nationals who were born in 1959, 1964, 1938, 1945, 1953, 1958, 1955 and 1945, respectively. They live in Timişoara , except for Mr Dobre and Mrs Iezdici who live in George Bacovia and Varia ș, respectively. The applicants are all represented before the Court by Mrs Ana Daniela Iordan , a lawyer practic ing in Timișoara .

A. Background of the case

2. The facts of the case, as submitted by the applicants, may be summarised as follows.

3. On 16 December 1989, a demonstration against the communist regime started in Timişoara . On 17 December 1989, at the order of Nicolae Ceaușescu , the president of the Socialist Republic of Romania at that time, certain high-ranked military officers, including the generals Victor Atanasie Stǎnculescu and Mihai Chițac , were sent to Timișoara to quash the demonstration by force.

4. Following the intervention of the army, the first applicant was injured in the head, on the arms and legs after being hit with a hard object. The husband of the second applicant; the daughter of the third applicant; the husband of the fourth applicant; and the sister of the seventh applicant were killed. The fifth applicant; the sixth applicant; and the eighth applicant were seriously wounded by bullets.

5. On 12 January 1990, the Timișoara Military Prosecutor ’ s Office (“the Military Prosecutor ’ s Office”) opened a criminal investigation against several civilians and military officers, including generals Stǎnculescu and Chițac , as a result of the violent quashing of the anti-communist demonstration in December 1989.

6. Between January and April 1990, the Military Prosecutor ’ s Office heard numerous witnesses of the events. Several military officers, including the two generals, were questioned during the investigation.

7. On 30 December 1997, the Military Prosecutor ’ s Offices issued an indictment and charged generals Stǎnculescu and Chițac with murder and attempted murder.

B. Criminal proceedings concerning all applicants and civil proceedings involving the first six applicants

1. Proceedings before the Court of Cassation

8. On an unspecified date the file was lodged with the military chamber of the Court of Cassation. On 6, 7 and 8 April 1998, the court heard several victims of the violent events of December 1989. During the hearings of 29 April and 11 May 1998, the court solved some procedural issues.

9. On 12, 13 and 14 May 1998; 18 Janua ry, 8 February, 19 April and 17 May 1999 the court heard several witnesses and other victims of the events.

10. On 9 November 1998, the case was referred to the criminal section of the Court of Cassation.

11. On unspecified dates, Mr Dobre , Mrs Iotcovici , Mrs Iezdici , Mrs Balogh , Mr Tomesc and Mr Prodan lodged civil claims and joined the criminal proceedings as civil parties.

12. By a judgment of 15 July 1999, the Court of Cassation, sitting as a first instance court, sentenced the generals Stǎnculescu and Chițac to 15 years ’ imprisonment for murder and attempted murder on the basis of documents and testimonial evidence. It also held that they were civilly liable, and ordered them to pay, jointly with the Ministry of Defence, as civilly liable third party: 200 million lei (ROL) (approximately 12,000 euro (EUR)) to the first applicant; ROL 150 million (approximately EUR 9,000) to the second applicant; ROL 200 million (approximately EUR 12,000) to the third applicant; ROL 400 million (approximately EUR 24,000) to the fourth applicant; ROL 300 million (approximately EUR 18,000) to the fifth applicant; and ROL 100 million (approximately EUR 6,000) to the sixth applicant, as pecuniary and non-pecuniary damages.

13. The accused and the Ministry of Defence appealed against the judgment on points of law (recurs).

14. On 7 February 2000, the Public Prosecutor ’ s Office asked for the adjournment of the proceedings .

15. By a final judg ment of 25 February 2000, the Court of Cassation, sitting as a second instance court, dismissed the appeal on points of law as ill-founded, on the grounds that, based on the evidence provided during the proceedings, the accused had been actively involved in the violent events in Timișoara in December 1989 and had been aware of the repression acts and the number of the victims. In addition, it held that the amount of pecuniary and non-pecuniary damage awarded to the civil parties had been determined on the basis of the damages actually incurred by each civil party, as such resulted from the evidence provided and by reference to the seriousness of the proven injuries.

2. Appeal of annulment brought by the Prosecutor General

16. On 7 August 2001, the Prosecutor General lodged an appeal of annulment (recurs È‹n anulare ) against the j udgments of 15 July 1999 and 25 February 2000 on the grounds that the judges violated the defence rights of the accused and misapplied the relevant le gal provisions. The file was re ‑ registered with the Court of Cassation, sitting as a Grand Chamber ( secÈ›iile reunite).

17. By a judg ment of 22 March 2004, the Court of Cassation, sitting as a Grand Chamber, allowed the Prosecutor General ’ s appeal of annulment. It held that by dismissing a request for the referral of an unconstitutionality objection as well as the request for adjournment made by Mr Stǎnculescu ’ s lawyer, the judges violated the defence rights of the accused. Conseq uently, it quashed the two judg ments and sent the file for re-examination of the merits to the first instance court.

3. Second set of proceedings before the Court of Cassation

18. On an unspecified date, the file was re-registered with the Court of Cassation.

19. On 6 December 2004, the proceedings were adjourned to allow one of the accused to prepare his defence.

20. On 5 October, 2 November and 14 December 2005, the proceedings were adjourned because the subpoenas for the civil parties were irregular.

21. On 11 September 2006, a large number of witnesses were heard. On 12 October 2006, the proceedings were adjourned on procedural grounds. At the hearings of 7 November and 5 December 2006, 9 January and 5 February 2007, the Court of Cassation heard several witnesses and examined evidence.

22. On 6 March 2007, the final pleadings were heard and the case went into delibera tions. The delivery of the judg ment was scheduled first for 20 March and then for 3 April 2007.

23. By a judg ment of 3 April 2007, the Court of Cassation sentenced generals Stǎnculescu and Chițac to 15 years ’ imprisonment for having organized and coordinated the repression of the anti-communist demonstrations in Timișoara . It held that the defendants committed the criminal offences they were charged with and that by their actions they facilitated the killing and the injury of a large number of persons. Also, there was a combined action of the accused and of the persons who directly used the firearms to quash the demonstrations in December 1989. In addition, it maintained the judgment of 15 July 1999 in respect of the payment of civil damages and acknowledged that the amounts had been already paid by the Ministry of Defence.

24. On 4 April and 27 November 2007, the Court of Cassation rectified some material errors in the judgment.

25. The defendants, the Ministry of Defence and several civil parties, including the first, the third, the fourth, the fifth and the sixth applicants appealed on points of law against the judg ment.

26. By a final judg ment of 15 October 2008, the Court of Cassation dismissed as ill-founded the appeals on points of law. It held that the complex activity performed by the two accused during the repression of the demonstration in December 1989, through the use of all categories of armed forced, which led to the killing of 72 persons and the injury of 253 persons, qualified as murder and attempted murder pursuant to the provisions of the Romanian Code of Criminal Procedure.

C. Civil proceedings involving the seventh applicant

27. On 28 February 2001, the seventh applicant ’ s father, Mr Angelco Sava, opened civil proceedings against generals Stǎnculescu and Chițac , seeking pecuniary and non-pecuniary damage on behalf of his daughter who had been killed during the violent events of December 1989.

28 . By a judgment of 23 May 2001, the Timi È™ County Court annulled the proceedings opened by Mr Sava for lack of bail as provided by law.

29. Mr Sava appealed against the judgment.

30. By a judgment of 2 October 2001, the Timișoara Court of Appeal allowed Mr Sava ’ s appeal, quashed the first instance court decision and, further to the re-examination of the case, allowed the civil proceedings opened by Mr Sava against the two generals. Consequently, it ordered the defendants jointly with the Ministry of Defence to pay ROL 200 million (approximately EUR 8,000) in respect of non-pecuniary damage to Mr Sava and noted that Mr Sava discarded his claim for pecuniary damage.

31. The two generals and the Ministry of Defence appealed on points of law against the judg ment.

32. On 29 October 2002, the proceedings were adjourned pending the outcome of the appeal of annulment proceedings (recurs È‹n anulare ) lodged by the Prosecutor General against the judgment of 15 July 1999.

33. On 29 September 2004, Mr Sava died.

34. On 2 December 2009, the seventh applicant became a party to the proceedings on behalf of her father and requested for the proceedings to be resumed.

35. On 26 January 2010, the Court of Cassation allowed the seventh applicant ’ s request and resumed the proceedings since the grounds for the suspension of the trial no longer existed.

36. By a final judg ment of 27 April 2010, the Court of Cassation dismissed as time-barred ( perimat ) the appeal on points of law brought by the generals and the Ministry of Defence, due to the latter ’ s inaction for a period of more than one year.

D. Civil proceedings involving the eighth applicant

37. On 25 January 2001, the eighth applicant opened civil proceedings against generals Stǎnculescu and Chițac and the Romanian Ministry of Defence, seeking to be awarded pecuniary and non-pecuniary damage.

38. By a judg ment of 19 April 2002, the Timi ș County Court dismissed the eighth applicant ’ s claim as ill-founded because he failed to prove that the requirements for tort liability were met. The court held that although it transpired from the file that the applicant had been injured on 17 December 1989, the persons who had caused the injury had not been identified and the applicant had failed to prove the subordination relation, as well as the perpetration of the offence by the defendants as part of their entrusted duties.

39. No further information was provided by the eighth applicant in respect of the set of civil proceedings opened against the two generals.

COMPLAINTS

1. Relying on Article 2 of the Convention, the applicants complain of the lack of promptness of the criminal investigation opened by the authorities in order to punish those responsible for the violent quashing of the anticommunist demonstration in Timișoara on 17 December 1989.

2. Invoking Article 6 § 1 of the Convention, the applicants complain of the length of the criminal proceedings opened on 12 January 1990.

3. Relying on Article 13 of the Convention, the applicants complain of the lack of an effective remedy in respect of the determination of their claims.

4. Invoking Article 14 of the Convention, the applicants complain of the discriminatory treatment of their complaints in so far as the application of the relevant laws to their specific cases was concerned.

QUESTIONS TO THE PARTIES

1. Is the Court competent ratione temporis to analyse the applicants ’ complaints under the procedural head of Article 2 of the Convention?

If so, did the investigation conducted by the domestic authorities satisfy the conditions of adequacy and promptness as required under the procedural head of Article 2 of the Convention?

2. Was the length of the criminal proceedings in the present case in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?