PARTLY DISSENTING OPINION OF JUDGE SILVIS, JOINED BY JUDGE STRETEANU

1. This case concerns the crackdown on anti-government demonstrations from 13 to 15 June 1990 in the Romanian capital, which resulted in several civilian casualties, including the first applicant ’ s husband, Mr Velicu Valentin Mocanu , who was killed by a shot fired from the headquarters of the Ministry of the Interior. Mr Marin Stoica , the second applicant, and other persons were arrested and ill-treated by uniformed police officers and men in civilian clothing in the area around the headquarters of the State television service and in the basement of that building. I agree with the finding in the judgment concerning a violation of the procedural aspect of Article 2 of the Convention in respect of Mrs Anca Mocanu . It is the Court ’ s established case-law that the procedural obligation to carry out an effective investigation under Article 2 constitutes a separate and autonomous duty on Contracting States. It can therefore be considered an independent obligation arising out of Article 2, capable of binding the State even when the substantive aspect of Article 2 is outside of the Court ’ s jurisdiction, by reason of ratione temporis (see Šilih v. Slovenia [GC], no. 71463/01, § 159, 9 April 2009). However, I cannot follow the majority in its conclusion that the applicant Mr Stoica lodged his application concerning a procedural violation of Article 3 of the Convention in due time.

2. The applicant Mr Stoica lodged his first complaint at domestic level eleven years after the events took place. On 25 June 2008, more than eighteen years after the events, the applicant lodged his application with the Strasbourg Court. With regard to his application, the Chamber had previously considered that, just as it was imperative that the relevant domestic authorities launch an investigation and take measures as soon as allegations of ill-treatment were brought to their attention, it was also incumbent on the persons concerned to display diligence and initiative. Thus, the Chamber attached particular importance to the fact that the applicant had not brought his complaint concerning the violence to which he was subjected on 13 June 1990 to the authorities ’ attention until eleven years after those events. Although the Chamber could accept that in situations of mass violations of fundamental rights it was appropriate to take account of victims ’ vulnerability, especially a possible inability to lodge complaints for fear of reprisals, it found no convincing argument that would justify the applicant ’ s passivity and decision to wait eleven years before submitting his complaint to the relevant authorities. Accordingly, the Chamber concluded that there had been no violation of the procedural aspect of Article 3 of the Convention. In contrast, the Grand Chamber considers that the applicant ’ s vulnerability and his feeling of powerlessness, which he shared with numerous other victims who, like him, waited for many years before lodging a complaint, amount to a plausible and acceptable explanation for his inactivity from 1990 to 2001.

3. Where time is of the essence in resolving the issues in a case, there is a burden on the applicant to ensure that his or her claims are raised before the Court with the necessary expedition to ensure that they may be properly, and fairly, resolved (see Varnava and Others v. Turkey [GC], nos. 16064/90 and 8 others, § 160, ECHR 2009 ). This is particularly true with respect to complaints relating to any obligation under the Convention to investigate certain events. As the passage of time can lead to the deterioration of evidence, time has an effect not only on the fulfilment of the State ’ s obligation to investigate but also on the meaningfulness and effectiveness of the Court ’ s own examination of the case. I do not share the view that when it becomes, ex post facto , probable that the tardiness of a complaint has not led to a deterioration in the quality of the Court ’ s examination, this would excuse the failure to display diligence in lodging a complaint in due time.

4. In a number of cases the Court has rejected as out of time applications where there had been an excessive or unexplained delay on the part of applicants once they had, or ought to have, become aware that no investigation had been instigated or that the investigation had lapsed into inaction or become ineffective and, in any of those scenarios, that there was no immediate, realistic prospect of an effective investigation being provided in the future (see, inter alia , Narin v. Turkey , no. 18907/02 , § 51 , 15 December 2009 ; Aydinlar and Others v. Turkey ( dec. ), no. 3575/05, 9 March 2010; and the decision in Frandes v. Romania ( dec. ), no. 3580/05 , §§ 18-23 , 17 May 2011 ). The Court accepts that there is evidence that the applicant was keeping track of developments in the criminal investigation prior to 18 June 2001.

5. It is understandable that, following the events of June 1990, the applicant was in such a state of distress that he was initially afraid of the oppressive authorities. However, the reason given for not filing complaints on the domestic level for a number of years after 1994, that is, when Romania had already become a Party to the Convention, was a lack of confidence in the effectiveness of the ongoing investigations. That state of affairs should normally have triggered the beginning of the six-month rule on filing a complaint with the Court. An applicant has to become active once it is clear that no effective investigation will be provided, in other words, once it becomes apparent that the respondent State will not fulfil its obligation under the Convention (see Chiragov and Others v. Armenia ( dec. ) [GC], no. 13216/05, § 136, 14 December 2011, and Sargsyan v. Azerbaijan ( dec. ) [GC], no. 40167/06, § 135, 14 December 2011, both referring to Varnava and Others , cited above , § 161). I find it hard to understand that the Court can only conclude, having regard to the exceptional circumstances in issue, that the applicant was in a situation in which it was not unreasonable for him to wait for developments that could have resolved crucial factual or legal issues. Such a conclusion hardly seems compatible with the degree of diligence incumbent on the applicant; nor does it promote meaningful and effective examination of such cases by the Court.

PARTLY DISSENTING OPINION OF JUDGE WOJTYCZEK

(Translation)

1. I do not share the majority ’ s opinion that the Court has jurisdiction ratione temporis to examine the complaints under the procedural aspect of Articles 2 and 3 of the Convention. In my opinion, these two complaints fall outside the temporal scope of the Convention and the part of the application based on these two Articles ought to have been declared inadmissible for this reason. Consequently, it is not necessary to dismiss, or even to examine the objections raised by the Government. Given that Articles 2 and 3 of the Convention are not applicable in this case, the respondent State could not have breached those provisions. In addition, in the absence of a violation of the Convention, there is no need to award compensation under this head.

2. I have no doubt that the facts as established by the Court in the present case represent very serious violations of human rights, and that those violations must not on any account go unpunished. Prosecution of those responsible is not only a moral duty, but also a legal obligation under national law. Moreover, I note that Romania ratified the International Covenant on Civil and Political Rights on 9 December 1974. The various complaints put forward fall within the temporal scope of that Covenant. While the European Court of Human Rights does not have jurisdiction to ensure compliance with this Covenant , nor to rule on possible violations of its provisions, in a separate opinion one may nonetheless point out that the facts established in the present case amount to a violation of the obligations arising from it. However, these various rules of international law cannot in themselves extend the temporal scope of the Convention for the Protection of Human R ights and Fundamental Freedoms.

3. I set out my position concerning the temporal scope of the Convention in my separate opinion joined to the judgment delivered by the Grand Chamber in Janowiec and Others v. Russia ([GC], nos. 55508/07 and 29520/09, ECHR 2013). I reaffirm my position, and also my agreement with the ideas expressed in the dissenting opinion expressed by Judges Bratza and Türmen , joined to the judgment in Šilih v. Slovenia [GC] (no. 71463/01, 9 April 2009). In the present case, I should like to make some additional clarifications on this matter.

4. In my opinion, a precise analysis requires that a distinction be made between two concepts: the temporal scope of a treaty (in other words, its temporal ambit) and the jurisdiction ratione temporis of the body responsible for verifying compliance with it. The temporal scope of a treaty is a matter of substantive law, while the extent of an international body ’ s jurisdiction ratione temporis is governed by the rules on jurisdiction. The jurisdiction ratione temporis of an international court does not necessar il y coincide with the temporal scope of the treaty which it is required to apply. A legal rule defining the extent of the jurisdiction of an international court may indeed restrict this jurisdiction with regard to events which fell within the temporal scope of the treaty in respect of which it is required to verify compliance. It would be more correct to refer in point no. 1 of the operative provisions to the concept of the Convention ’ s temporal scope.

5. The Court has on numerous occasions affirmed, rightly, that the Convention does not operate in a legal vacuum, and that it must be interpreted in the context of the other rules of international law. The various rules which make up the external context for interpretation of a treaty do not always have the same weight, or the same role in the system of international law. In fact, the rules of treaty law occupy a special position, in that they are meta-regulatory in nature and guarantee the coherence of international law. Before resorting in this case to the substantive rules applicable in interpreting and applying the Convention, due account should first ly have been given to the various meta - rules governing treaties, particularly those concerning their entry into force, their binding force, their interpretation, their application and the Convention ’ s temporal and territorial scope.

The main rules of the law of treaties were codified by the Vienna Convention on the Law of Treaties. Although this treaty does not apply, as such, to the Convention for the Protection of Human Rights and Fundamental Freedoms, it codifies the rules of customary international law which are applicable in this case. Article 28 of the Vienna Convention sets out the principle that treaties do not have retroactive effect in the following terms: “Unless a different intention appears from the treaty or is otherwise established, its provisions do not bind a party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the treaty with respect to that party”. Although the non-retroactive effect of treaties is not an absolute principle, the parties ’ wish to give retroactive effect to a convention rule must be expressed with sufficient clarity. Moreover, it must be emphasised that the exact meaning of the principle that a law must not be applied with retroactive effect may be open to discussion, and that it is not always easy in practice to apply the rule laid down by Artic le 28 of the Vienna Convention.

6. The Court has expressly acknowledged the principle that the Convention does not have retroactive effect, and has applied it coherently for many years. There was initially no doubt that the Convention could not impose an obligation to carry out an investigation into events which occurred prior to its entry into force with regard to the respondent State. The Court confirmed this case-law with regard to Romania in Moldovan and Others and RostaÅŸ and Others v. Romania (( dec. ), nos. 41138/98 and 64320/01, 13 March 2001). The approach changed completely with the above-cited Å ilih judgment. That judgment partly accepts the retroactive application of the Convention to events which occurred prior to the date of its ratification by the respondent State, by laying down the principle that, subject to certain conditions, the Convention imposes an obligation to investigate such events.

Here we should note, in passing, the Court ’ s decision in the case of Bălăşoiu v. Romania ( ( dec. ), no. 37424/97, 2 September 2003). The approach taken was a departure from the well-established case-law, but no grounds were given for it and the decision in question did not lay down any general rule in this area. The rule prohibiting retroactive effect was subsequently complied with and upheld in other cases examined by the Court prior to 9 April 2009.

In this context, it is clear that the Court ’ s consistent case-law, maintained until the Šilih judgment, gave the States a legitimate expectation concerning the definition of the Convention ’ s temporal scope. This consistency in the case-law created a situation in the relations between the High Contracting Parties and the Court that was comparable, albeit somewhat different, to the expectations protected in inter-State relations under the principle of estoppel. The States which ratified the Convention before the date of the Šilih judgment did so taking into consideration the fact that they would not have to answer for violations committed prior to the date on which the Convention came into force in their respect, and that the Convention did not impose on them an obligation to investigate events which had occurred prior to that date. This was the case, in particular, for Romania, which ratified the Convention on 20 June 1994. The States Parties could in consequence devise actions to ensure protection of human rights, notably by determining priorities and assigning the necessary resources. Until the Šilih judgment, it was impossible for the High Contracting Parties to foresee that they could be held responsible for acts and omissions in the area of investigations into events which had occurred before the date of the Convention ’ s entry into force in their respect. The Šilih judgment led to a situation in which States ’ responsibility was engaged for acts and omissions which had been considered as falling outside the temporal scope of the Convention as it was interpreted and applied at the moment of these acts and omissions.

7. The supporters of an approach which allows exceptions to the principle that the Convention does not have retroactive effect emphasise the need for an evolutive interpretation of the Convention in such a way as to extend human rights protection gradually . However, the issue of the content of protected rights is completely different from that of their temporal scope. Equally, a wide interpretation of the content of protected rights cannot be compared to extension into the past of protection for those same rights. Amendments through the case-law to a treaty ’ s temporal scope for the purpose of giving it retroactive effect have serious implications for the effec tiveness of international law.

The principle of non-retroactivity of legal norms is an essential guarantee of legal certainty and a fundamental condition for confidence in the law and for a rational policy of human rights protection. We must reject the idea that protection of legal certainty in international law should serve only individuals, and not States. Effective protection of human rights in Europe requires a minimum level of trust in the relationship between States and the international bodies responsible for implementing the treaties in this area. It also requires loyalty on the part of those bodies. Attribution of retroactive effect to a treaty by means of the case-law, following several decades of well-established case-law upholding the principle that the treaty is not to be applied retroactively, may undermine the trust that is necessary for the effective functioning of this international instrument. States whose acts or omissions were not considered at the relevant time as contrary to the Convention are today held responsible for them. Such an approach does not encourage States to respect international law. It also raises the question of the legitimacy of the international court, exposing it to the – legitimate – criticism that it i s exercising judicial activism.

8. It should be added that the position adopted in the Å ilih judgment (cited above) has never been explained, or justified, from the perspective of the rules of the law of treaties. This case-law contributes to the fragmentation of international law which has been criticised in the legal scholarship. Further, this fragmentation does not concern the substantive law, but relates to the fundamental meta-rules of international law and may lead to the development of systems which derogate from the universal law of treaties.

In addition, as was quite rightly emphasised by Judge Lorenzen in his concurring opinion attached to the Šilih judgment, the criteria established in that judgment are not clear. Moreover, the above-cited Janowiec and Others judgment did nothing to clarify them. In those circumstances, it is frequently difficult to ascertain whether given events which occurred prior to the Convention ’ s entry into force in respect of a given State give rise to the obligation to investigate and prosecute. This produces a situation of judicial uncertainty, both for individuals and for States. As the Janowiec and Others case shows, the engendering of excessive hopes with regard to the protection of human rights, prompted by the “fuzziness of the law”, may lead to the erosion of the legitimacy of the entire system of human rights protection in Europe. If the Convention is to remain a living and effective instrument, it seems that the optimal solution for resolving the various problems created by the Šilih case-law consists in returning to a strict application of the law of treaties, the primary condition for judicial certainty and the foreseeability of the law. Without these, it is difficult to develop large-scale policies in the area of human rights protection in the States Parties.

9. I fully accept the idea that Articles 2 and 3 of the Convention contain a substantive aspect and a procedural aspect, and that the latter differs from the former. However, I agree with the opinion of Judges Bratza and Türmen to the effect that the procedural aspect is not detachable from the acts constitutive of a violation of the substantive limb of the a rticles in question (see their separate opinion in Šilih , cited above). The obligation to carry out an investigation is separate from, but instrumental and subsidiary to, the substantive protection. The procedural obligations are an instrument for implementation of the substantive obligations. They can only take effect in respect of events which occurred after the date on which the Convention came into force in respect of the respondent State. Indeed, the Court is conscious of the link between these two aspects of protection when it states that “there must exist a genuine connection between the death and the entry into force of the Convention in respect of the respondent State for the procedural obligations imposed by Article 2 to come into effect” (see Šilih , cited above, § 163). If the procedural limb were genuinely fully independent of the substantive limb and if the obligation to investigate events prior to the entry into force of the Convention in respect of the respondent State did not give rise to an issue having regard to the principle of the non-retroactive effect of treaties, then why set out all these reservations and list the various conditions for the obligation in question?

10. It is also appropriate to specify that the issue of a violation of Article 6 of the Convention is framed in different terms. Many countries accept the principle that changes made to procedural law may apply to pending proceedings. The High Contracting Parties have had to apply the Article 6 safeguards as soon as they became applicable, especially the obligation to comply with the reasonable-time requirement in cases which were pending when the Convention came into force. The applicability of Article 6 in the present case does not in any way mean that that provision has retroactive effect. The complaints raised under Article 6 of the Convention remain within the Convention ’ s temporal scope. I voted with the majority on this question.

11. The majority emphasises the fact that “in cases concerning torture or ill-treatment inflicted by State agents, criminal proceedings ought not to be discontinued on account of a limitation period, and also that amnesties and pardons should not be tolerated in such cases” (see paragraph 326 of the judgment). I would note here a certain incoherence with the positions taken in the judgments in Janowiec and Others (cited above) and Margu š v. Croatia ([GC], no. 4455/10, ECHR 2014). In the Janowiec and Others judgment – which, it should be remembered, concerns war crimes – “[the Court] emphasise[d] the fundamental difference between having the possibility of prosecuting an individual for a serious crime under international law where circumstances allow it, and being obliged to do so by the Convention” (see § 151) and accepted the idea that the passage of time could extinguish the obligation to investigate and prosecute. In Margu š , the Court took a highly nuanced position on the question of amnesties, stating that

“[ a ] growing tendency in international law is to see such amnesties as unacceptable because they are incompatible with the unanimously recognised obligation of States to prosecute and punish grave breaches of fundamental human rights. Even if it were to be accepted that amnesties are possible where there are some particular circumstances, such as a reconciliation process and/or a form of compensation to the victims, the amnesty granted to the applicant in the instant case would still not be acceptable since there is nothing to indicate that there were any such circumstances : ” (see § 139)

I do not see how the opinions expressed in these two latter judgments can be reconciled with the position adopted in the present case and set out above. The Court ’ s precise position on the issues of limitation and amnesty has thus yet to be clarified.

I subscribe fully to the idea that the crimes committed by the totalitarian and authoritarian regimes must be prosecuted, and the pe rpetrators brought to justice. However, I consider that the position taken by the majority in this case concerning the issue of limitations and amnesties is too rigid. The category of “ill-treatment” encompasses very different actions. Legitimate considerations of rational penal policy may justify limitation or amnesty, at least for acts of lesser seriousness.

12. The protection of human rights on the basis of the Convention for the Protection of Human Rights and Fundamental Freedoms has its limits and its lacunae. They are to be regretted, but we must accept them. It is for the High Contracting Parties to correct them by means of new treaties.

[1] . On the Court’s competence ratione temporis with regard to incidents which occurred in the transitional period in Romania, see Agache and Others v. Romania , no. 2712/02, § § 69 ‑ 73 , 20 October 2009 ; Åžandru and Others v. Romania , no. 22465/03, §§ 57- 59, 8 December 2009 ; and Association “21 December 1989” and Others v. Romania , nos. 33810/07 and 18817/08, § § 116-1 8, 24 May 2011, based on Å ilih v. Slovenia [ GC ] , no. 71463/01, §§ 159-63, 9 April 2009. Since the Convention provides for procedural obligation s which are separate and autonomous from substantive obligations, the logical consequence is that the Court has competence ratione temporis whenever these procedural obligations have been or ought to have been carried out after the critical date . This case-law is not new, in view of the principle established both by the Permanent Court of International Justice in Mavrommatis Pales tine Concessions (1924), PCIJ Series A No . 2 , p. 35 , and in Electricity Company of Sofia and Bulgaria (Belgium v . Bulgaria) (1939), PCIJ Series A/B No 77 , p. 82 , and by the International Court of Justice in Case concerning Right of Passage over Indian Territory (Portugal v. India) , ICJ Reports 1960 , p. 6 at p . 35 (“ The Permanent Court thus drew a distinction between the situations or facts which constitute the source of the rights claimed by one of the Parties and the situations or facts which are the source of the di spute. Only the latter are to be taken into account for the purpose of applying the Declaration accepting the jurisdiction of the Court .”), and Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Preliminary Objections) ICJ Reports 1996 , § 34 . Hence, Å ilih is not so distant from the principle set out in general international law . And, as in Å ilih , t he death of Mr Mocanu , the ill-treatment of Mr Stoica and the ransacking of the applicant association’s headquarters did not constitute “the source of the dispute”; instead, they were “ the source of the rights claimed ” by the applicants , and therefore came under the jurisdiction ratione temporis of this Court .

[2] . See K.-H.W. v. Germany [GC] , no. 37201/97, §§ 107-12, ECHR 2001-II ; Kononov v. Latvia [GC] , no. 36376/04, §§ 228-33, ECHR 2010; and the j oint partly dissenting opinion of Judges Pinto de Albuquerque and Turković , joined to Matytsina v. Russia , no. 58428/10, 27 March 2014. Among legal scholars, see Delmas -Marty, “La responsabilité pénale en échec (prescription, amnistie , immunités )”, in Cassese and Delmas-Marty, Crimes internationaux et juridictions internationales , 2002, p. 617, and Lambert Abdelgawad and Martin- Chenut , “ La prescription en droit international: vers une imprescriptibilité de certains crimes ”, in Ruiz Fabri et al ., La clémence saisie par le droit , 2007, p. 151.

[3] . In Vinter and Others v. the United Kingdom [ GC ] , no s . 66069/09, 130/10 and 3896/10 , §§ 113-18, ECHR 2013, the Court endorsed the international consensus on the obligation of resociali s ation of offenders sentenced to prison terms , which is based, among other sources, on A rticle 10 § 3 of the International Covenant on Civil and Political Rights, A rticle 5 § 6 of the American Convention on Human Rights and A rticle 40 § 1 of the United Nations Conven tion on the Rights of the Child .

[4] . See Stubbings and Others v. the United Kingdom , 22 October 1996, § 51, Reports of Judgments and Decisions 1996-IV, and Brecknell v. the United Kingdom , no. 32457/04, § 69, 27 November 2007 .

[5] . Article 17 § 2 of the Declaration on the Protection of all Persons from Enforced Disappearance , adopted by General Assembly resolution 47/133 of 18 December 1992 , and Principle 23 of the Updated Set of principles for the protection and promotion of human rights through action to combat impunity , E/CN.4/2005/102/Add.1 , 8 February 2005 .

[6] . See the opinion of Judges Vu č ini ć and Pinto de Albuquerque in Perinçek v. Switzerland , no . 27510/08 , 17 December 2013 . Legal scholars agree ( see W. Bourdon, La C our penale internationale , 2000, p. 125, C. Van den Wyngaert and J. Dugard , “ Non - applicability of statute of limitations ” , in Cassesse et al., The Rome Statute of the International Criminal Court, A commentary , 2002, p. 879, and E. Lambert Abdelgawad and K. Martin- Chenut , “ La prescription en droit international: vers une imprescriptibilité de certains crimes ” , in Ruiz Fabri et al., La clémence saisie par le droit , 2007, p. 120).

[7] . This Statute was adopted on 17 July 1998 by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court and opened for signature on that date. It came into force on 1 July 2002. Romania signed it on 7 July 1999 and ratified it on 11 April 2002. There are currently 122 States Parties.

[8] . This Convention was adopted by United Nations General Assembly R esolution 2391 (XXIII) on 26 November 1968. Romania ratified it on 15 September 1969. It came into force on 11 November 1970. There are currently fifty-four States Parties.

[9] . This Convention was opened for signature on 25 January 1974 and came into force on 27 June 2003. It was signed by Romania on 20 November 1997 and ratified on 8 June 2000. There are currently seven States Parties. While the United Nations Convention of 1968 provide d for its own retroactivity, the European Convention of 1974 and the Rome Statute chose the opposite approach .

[10] . The Resolution set out “the principle that there is no period of limitation for war crimes and crimes against humanity” in international law and urged all States “to take any measures necessary to prevent the application of statutory limitations to war crimes and crimes against humanity” .

[11] . This also applies to, if not all, at least some war crimes. The International Committee of the Red Cross (ICRC) presented in 2005 a Study on Customary International Humanitarian Law ( J.-M. Henckaerts and L. Doswald -Beck (eds.), Customary International Humanitarian Law , 2 Volumes, Cambridge University Press & ICRC, 2005). The Study contains a list of customary rules of international humanitarian law. Rule 160 reads: “ Statutes of limitation may not apply to war crimes. ” The summary notes that “ State practice establishes this rule as a norm of customary international law applicable in relation to war crimes committed in both international and non-international armed conflicts ” .

[12] . The French Court of Cassation affirmed that same principle in Fédération nationale des déportés et intern é s résistants et patriotes et al. c. Barbie (1984).

[13] . P rosecution of the crime of genocide, war crimes, crimes against humanity and torture is not subject to time constraints.

[14] . P rosecution of the crime of genocide, crimes against humanity, war crimes and violations of certain Iraqi laws listed in Article 14 of the Statute is not barred by any time-limits .

[15] . P rosecution of the crime of genocide and crimes against humanity is not subject to any statute of limitation s . Murder, torture and religious persecution is submitted to an extended period of twenty years.

[16] . Article 93 § 3 of the Rome Statute.

[17] . United Nations Commission on Human Rights Resolution 2005/81, § 4 : “ [The Commission on Human Rights] [ a ] cknowledges that under the Rome Statute genocide, crimes against humanity and war crimes are not subject to any statutes of limitations and prosecutions of persons accused of these crimes shall not be subject to any immunity, and urges States, in accordance with their obligations under applicable international law, to remove remaining statutes of limitations on such crimes and to ensure, if provided for by their obligations under international law, that official immunities rationae materiae do not encompass them .. .”

[18] . This Convention was adopted by General A ssembly R esolution 39/46 on 10 December 1984 and came into force on 26 June 1987. Romania ratified it on 18 December 1990. There are currently 155 States P arties.

[19] . CAT, Conclusions and recommendations , Turkey, CAT/C/CR/30/5 , 27 May 2003, § 7 (c); Slovenia, CAT/C/CR/30/4 , 27 May 2003, §§ 5 (b) and 6 (b); Chile, CAT/C/CR/32/5, 14 June 2004, § 7 (f) ; Denmark, CAT/C/DNK/CO/5, 16 July 2007, § 11; Japan, CAT/C/JPN/CO/1, 3 August 2007, Section C; Jordan, CAT/C/JOR/CO/2, 25 May 2010, § 9 ; Bulgaria, CAT/C/BGR/CO/4-5, 14 December 2011, § 8 ; Armenia, CAT/C/ARM/CO/3, 6 July 2012, § 10 ; and General Comment No. 3 CAT/C/GC/3, 2012 , § 40.

[20] . UNHRC, Concluding observations: Ecuador, A/53/40, 15 September 1998, § 280 (“torture, enforced disappearances and extrajudicial executions”) ; Argentina, CCPR/ CO/70/ARG, 15 November 2000 , § 9 (“g ross violations of civil and political rights during military rule ”); Panama, CCPR/C/PAN/CO/3 , 17 April 2008 , § 7 (“ offences involving serious human - rights violations ”) ; and El Salvador, CCPR / C/SLV / CO/6, 18 November 2010, § 6 (“ torture and enforced disappearance ... serious human rights violations ”) . Referring to t orture and similar cruel, inhuman and degrading treatment, summary and arbitrary killing , enforced disappearance s and crimes against humanity, UNHRC General Comment No. 31, CCPR/C/21/Rev. 1/Add. 13, § 18 , takes a more nuanced position, by stating that “[o] ther impediments to the establishment of legal responsibility should also be removed, such as the defence of obedience to superior orders or unreasonably short periods of statutory limitation in cases where such limitations are applicable .. . ”.

[21] . Report of the Special Rapporteur on the p romotion and p rotection of h uman r ights and f undamental f reedoms w hile c ountering t errorism, Mission to Peru, A/HRC/16/51/Add 3, 15 December 2010 , §§ 17, 18 and 43(c).

[22] . Special Rapporteur on t orture and o ther c ruel, i nhuman or d egrading t reatment or p unishment, Missio n to the Republic of Moldova, A/ HRC/10/44/ Add .3, 12 February 2009, § 81 , and Follow-up to the recommendations made , A/HRC/19/61/Add.3 , 1 March 2012 , §§ 78 and 116 .

[23] . P romotion and P rotection of H uman R ights, R eport of the independent expert to update the S et of P rinciples to combat impunity, E/CN.4/2005/102, 1 8 February 2005, § 47.

[24] . In this context, a right to the truth has been invoked by the Office of the United Nations High Commissioner for Human Rights (see “Study on the right to the truth”, E/CN.4/2006/91 , 2006 ) , which concluded that “ the right to the truth about gross human rights violations and serious violations of human rights law is an inalienable and autonomous right” and “should be considered as a non- derogable right and not be subject to limitations”. Accordingly, “ [ a ] mnesties or similar measures and restrictions to the right to seek information must never be used to limit, deny or impair the right to the truth”.

[25] . See Abd ü lsamet Yaman v. Turkey , no. 32446/96, § 55, 2 November 2004 ; Yeter v. Turkey , no. 33750/03, § 70, 13 January 2009 ; and İ zci v. Turkey , no. 42606/05, § 73, 23 July 2013.

[26] . See Barrios Altos v. Peru (merits), judgment of 14 March 2001, Series C No. 75 , § 41 (referring to serious human rights violations, such as torture, extrajudicial, summary or arbitrary execution and forced disappearance),  reiterated repeatedly in Rochela Massacre v. Colombia (merits, reparations and costs), judgment of 11 May 2007, Series C No. 163 , § 294; Ticona Estrada et al. v. Bolivia (m erits, r eparations, and c osts ), j udgment of 27 November 2008 , Series C No. 191 , § 147; “ L a s Dos Erres ” Massacre v. Guatemala, ( p reliminary o bjection, m erits, r eparation and c osts) , j udgment of 24 November 2009 , Series C No. 211, § 233; Anzualdo Castro v. Peru (p reliminary o bjections, m erits, r eparations and c osts , j udgment of 22 September 2009 , Series C No. 202 , § 182 ; and Gomes Lund et al. (Guerrilla do Araguaia”) v. Brazil (p reliminary o bjections, m erits, r eparations and c osts , j udgment of 24 November 2010 , Series C No. 219, § 172 . This position was seconded by the Inter-American Commission on Human Rights (Case 10.480 (El Salvador), report of 27 January 1999, § 113 (referring to torture, summary executions and forced disappearances).

[27] . See Prosecutor v . Furund ž ija , 10 November 1998, IT-95-17/1-T, §§ 155 and 157. The appeals chamber judgment of 21 July 2000 confirmed, at § 111, the first-instance reasoning.

[28] . It is to be noted that the concept of torture does not have the exact same content in these three regional human rights systems, which makes it even more difficult to attain the level of a universal customary rule. In addition, domestic criminal laws vary significantly with regard to the statute of limitations applicable to the crime of torture among States which criminalise this offence autonomously, most of them preferring long statutory periods to imprescriptibility .

[29] . See page 6 of the Government’s submissions to the Grand Chamber, 1 July 2013.

[30] . See page 23 of the Government’s submissions to the Grand Chamber, 1 July 2013.

[31] . I refer to a video recording , filmed by the authorities themselves , of the events in the basement of the State television station on 13 June 1990, and to the victim’s identity documents , which were confiscated on that occasion .

[32] . The fact of committing murder, torture, persecution and inhumane acts has always been considered as an element of the notion of crimes against humanity (see A rticle 6 (c) of the International Military Tribunal (IMT) Charter ; Article 5 (c) of the International Military Tribunal for the Far East (IMTFE) Charter ; Article 2 § 1 (c) of Control Council Law no. 10; Article 5 of the Statute of the ICTY ; Article 3 of the Statute of the International Criminal Tribunal for Rwanda ( ICTR ); Article 18 of the 1996 Draft Code of Crimes against the Peace and Security of Mankind ; and Article 7 § 1 of the Statute of the International Criminal Court ( Rom e Statute ) . The Rome Statute added sexual crimes other than rape, forced di sappearance and apartheid to the usual list.

[33] . The fact of commi tting an attack against the civilian population h as been stressed as the basic element of the notion of crimes against humanity since at least the common declaration of France, the United Kingdom and Russia of 24 May 1915 , on the attacks of the Turkish g overnment against their own population of Armenian origin . Article 6 ( c) of the IMT Charter , Article 5 (c) of the IMTFE Charter , Article 2 § 1 (c) of Control Council Law no. 10, Article 5 of the Statute of the ICTY , Article 3 of the Statute of the ICTR and Article 7 § 1 of the Rome Statute codified this element. R eferences to an attack against the civilian population on national, political, ethnic, racial or religious grounds have been interpreted as not excluding attack s on civilians without discriminatory int ention , with the exception of persecutions (see, for example, Duško Tadi ć , 15 July 1999, IT-94-1 -A , §§ 283, 292 and 305; Tihomir Blaški ć , 3 March 2000, IT-95-14, §§ 244 and 260; and Dario Kordić and Mario Čerkez , 26 February 2001, IT-95-14/2, § 186). The attack may include any civilian population, including third parties to a conflict ( Dragoljub Kunarac et al. , 22 February 2001, IT-96-23&23/1, § 423).

[34] . For a description of the transitional period experienced by Romanian society from December 1989 to September 1991 and references to the “massive use of lethal force against the civilian population” during the “anti-government demonstrations preceding the transition from a totalitarian regime to a more democratic regime”, see Ş andru and Others , cited above, Association “21 December 1989” and Others , cited above, and Cr ă iniceanu and Frumu ş anu v. Romania , no. 12442/04, 24 April 2012 .

[35] . The demonstrators’ most important demands were related to implementation of the so-called Proclamation of Timi ş oara , in particular one of its main objectives , namely the exclusion of former leaders of the c ommunist regime from political life (see paragraph 27 of the judgment) . To peaceful, political protest the government offered a heavy-handed, armed response. The link to an armed conflict as an element of the notion of crimes against humanity, which resulted from Article 6 (c) of the IMT Charter, Article 5 (c) of the IMTFE Charter and Article 5 of the Statute of the ICTY, was abandoned by Article 2 § 1 (c) of Control Council Law no. 10, Article 3 of the Statute of the ICTR , Article 18 of the 1996 Draft Code of Crimes against the Peace and Security of Mankind and Article 7 § 1 of the Rom e Statute . As the ICTY appeals chamber concluded in Duško Tadić , 2 October 1995, IT-94-1, § 141, “customary international law may not require a connection between crimes against humanity and any conflict at all”. The same position was taken by the ICTR in Jean-Paul Akayesu , 2 September 1998, ICTR-96-4, § 565, and Ignace Bagilishema , 7 June 2001, ICTR-95-1A-T, § 74.

[36] . That a widespread and/ or systematic attack i s an element of the notion of crimes against humanity, which implies the existence of a plan, a complot or an organi s ed action, was already noted at the “ Constantinople trials ” of 1919 (see the separate opinion of Ju d ges Vu č ini ć and Pinto de Albuquerque in Perin ç ek , cited above), and later included in Article 3 of the Statute of the ICTR , Article 18 of the 1996 Draft Code of Crimes against the Peace and Security of Mankind and Article 7 § 1 of the Rom e Statute . Such an attack is not limited to the use of military force and may include every sort of ill-treatment inflicted on the civilian population (see ICTR appeals chamber, Du Å¡ ko Tadi ć , 15 July 1999, IT-94-1-A, § 251, and Dragoljub Kunarac et al. , 12 June 2002, IT-96-23&23/1, § 86). The widespread character of the attack implies its massive nature and a multiplicity of victims, resulting from the cumulative effect of a series of individual acts or the singular effect of one single act of extraordinary magnitude, but excluding in principle an isolated act, except when it occurs in the context of a more general attack (see, inter alia , Du Å¡ ko Tadi ć , 7 May 1997, IT-94-1-T, § 648; Tihomir Bla Å¡ ki ć , 3 March 2000, IT-95-14, § 206; Dragoljub Kunarac et al . , 22 February 2001, IT-96-23&23/1, § 429; Jean-Paul Akayesu , 2 September 1998, ICTR-96-4, § 123; and George Rutaganda , 6 December 1999, ICTR-96-3, § 69). The systematic character of the attack implies a minimum of planning and organisation , although this plan need not necessarily be declared expressly or even stated clearly and precisely and may be surmised from the occurrence of a series of events , such as the mobilisation of armed forces , excluding in principle fortuitous or spontaneous acts of violence (see Goran Jelisi ć , 14 December 1999, IT-95-10, § 53; Tihomir Bla Å¡ ki ć , 3 March 2000, IT-95-14, §§ 203-07; and Dragoljub Kunarac et al . , 22 February 2001, IT ‑ 96 ‑ 23&23/1, § § 428-29). In spite of the alternative formulation of these two characteristics of an attack in Article 7 § 1 of the Rome Statute, its definition of “attack” in § 2 (a) of the same Article underlines the connection to a “policy” in any case (“ pursuant to or in furtherance of a State or organi s ational policy to commit such attack ”).

[37] . Subjectively, perpetrators of crimes against humanity must have knowledge of the general context in which the assault occurred and the connection between their actions and that context , but they do not have to have full knowledge of all details of the attack ( see Kayishema and Ruzindana , 21 Ma y 1999, ICTR-95-1, § 133 ; Dragoljub Kunarac et al . , 22 February 2001, IT-96-23&23/1, § 592; Germain Katanga and Mathieu Ngudjolo Chui , 30 September 2008, ICC-01/04-01/07, § 417; and Omar Al Bashir , 4 March 2009, ICC ‑ 02/05-01/09, § 87 ). From the evidence in the file , it follows that both the members of the g overnment and the senior military officials involved in the preparation and execution of the assault on University Square , the headquarters of opposition parties and other legal entities, and in other areas of the city did indeed ha ve such knowledge, and deliberately and wilfully pursued the attack against the civilian population. In fact, similar violent actions by the miners had already occurred in the recent past in Bucharest, and therefore the authorities were well aware of what would happen if they were again “ mobilised ” (see paragraph 24 of the judgment). It is to be highlighted that , after “inviting them to cooperate with the security forces and to restore order”, the then President of the respondent State “thanked” the miners for their chaotic and violent actions and “ authori s ed ” them to leave the city on 15 June 1990 ( see paragraph s 61 and 69 of the judgment). Th ese words speak for themselves, and show urbi et orbi who had effective control of the miners ’ actions .

[38] . In spite of certain laudable statements by several prosecutorial and judicial authorities in Romania, such as those transcribed in paragraphs 110 and 118 of the judgment, justice has not yet been done.

[39] . The respondent State accepts that “non-applicability of statutory limitation is exceptional and is, in principle, reserved for offences under international criminal law (genocide, crimes against humanity and war crimes)” ( see page 23 of the Government’s submissions to the Grand Chamber, 1 July 2013).

[40] . In Association “21 December 1989” and Others , cited above, § 1 94 , the Court had already ordered that “ the respondent State must put an end to the situation identified in the present case and found by it to have been in breach of the Convention, concerning the right of the many persons affected, such as the individual applicants, to an effective investigation which is not terminated by application of the statutory limitation of criminal liability, and in view also of the importance to Romanian society of knowing the truth about the events of December 1989. The respondent State must therefore introduce an appropriate remedy in order to comply with the requirements of Article 46 of the Convention”. The same applies to the events of June 1990.