THIRD SECTION

Application no. 34782/10 Sofiya Filippovna DEMCHUK and Valeriy Valentinovich SHPARTAK against Romania lodged on 4 June 2010

STATEMENT OF FACTS

The applicants, Ms Sofiya Filippovna Demchuk and Mr Valeriy Valentinovich Shpartak , are Ukrainian nationals, who were born in 1946 and 1951 respectively and live in Rovno .

A. The circumstances of the case

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

1. The events of 24 December 1989

On 24 December 1989, the applicants, husband and wife, 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.

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.

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 Bradesti . The unit was led by Lieutenant Colonel S.F. The road was blocked with two armoured vans, between which only one car could pass.

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 applicants 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 applicants were shot and wounded by bullets. 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.

After a while, the applicants were taken to hospital.

The second applicant, who was shot in his left shoulder, could live the hospital and go back home, in Rivne , on 29 December 1989.

On 9 January 1990 the first applicant, who was wounded in her spine, was transferred to a hospital in Moscow , due to h er serious medical condition. She never recovered completely and she is recognised as a disabled person. From the investigation carried out by the Romanian authorities it appears that the first applicant needed 25-30 days of medical care.

2. Criminal investigation into the events at Bradesti on 24 December 1989

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

It appears from the documents submitted by the respondent Government that during 1990 several investigative 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 second 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 Bradesti . With the assistance of the USSR Embassy, all the victims were interviewed by a Soviet prosecutor and their statements were handed ov er to the Romanian authorities.

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.

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 .

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.

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.

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.

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 .

A.C. and K.C. (two of the passengers involved in the events) lodged a criminal complaint against this decision with the higher prosecutor. 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 .

By a decision of 4 April 2007, the Chief Military Prosecutor quashed the prosecutor ’ s order of 13 January 2005, indicat ing 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 investigation file conc erning the December 1989 Revolution events, namely, file no 97/P/1990.

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 Bradesti .

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.

At present, the investigations are still pending .

It appears that at the beginning of the investigation, communication with the victims, including the applicants, was carried out through the Soviet Embassy.

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

The applicants submitted that they had found out from journalists exploring their case 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

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

The applicants complain under Article 3 that they were subjected to torture and inhuman treatment on 24 December 1989, as they were shot and severely injured by the soldiers that wrongly called them terrorists.

They complain under Article 2 of Protocol No 4 to the Convention that on 24 December 1989 their freedom of movement was unlawfully restricted.

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.

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

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 (see Şandru and Others v. Romania , no. 22465/03, §§ 51-54, 8 December 2009) concerning the lack of an effective investigation into their shooting and severe injury?

2. If so, did the applicants lodge the application within the six-month time-limit (see, Bulut and Yavuz v. Turkey ( dec .), no. 73065/01, 28 May 2002; Bayram and Yıldırım v. Turkey ( dec .), no. 38587/97, ECHR 2002-III , and Stanimirović v. Serbia , no. 26088/06 , §§ 30-33 , 18 October 2011 )?

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